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Federal Court in Florida: Third-Party Sexual Assault Lawsuit Against Cruise Line May Proceed

Ansara Law Personal Injury Attorneys — Mon, 20 Aug 2018 18:54:50 GMT

Cruise ships off the coast of Florida (and elsewhere) have a well-documented, long-running problem with sexual assaults on board, according to U.S. government data that spurred an NBC News investigation last year. Of the 92 alleged on-board crimes reported by cruise lines in 2016, a total of 62 were sexual assaults. When these occur at sea, it can be difficult to pursue criminal prosecution, and in fact, most sexual assault cases did not result in an arrest and/ or conviction. Further (and even more disturbing) many of those on-board sexual assaults involved minors.

One of the only avenues claimants may have to seek justice is civil litigation. Of course, a perpetrator can be held directly liable for damages resulting from a sexual assault, including medical expense treatment, therapy costs, pain and suffering and more. However, civil litigation can also hold the cruise line to account for negligence in the failure to protect against a foreseeable third-party criminal assault. Our Fort Lauderdale tourist injury lawyers know this can involve lack of adequate security, negligence in over-serving alcohol to patrons or failure to properly screen potentially dangerous employees. Because these incidents occurred at sea, they must be tried in a federal court and maritime law is applicable.

One such case is recently proceeding to trial, after the U.S. District Court for the Southern District of Florida denied a motion by defendant Royal Caribbean Cruises to dismiss a complaint alleging negligence and intentional infliction of emotional distress stemming from the alleged sexual assault of a 13-year-old boy aboard one of its ships. Plaintiff is seeking both actual and punitive damages on both counts.more

According to court records, the young boy was on a trip with his mother and brother. In the early morning hours, plaintiff was with several other young passengers in the library of the ship when around 2 a.m., two visibly intoxicated adult passengers entered the area and sexually battered plaintiff.

Plaintiff would later allege the assailant pair were overserved alcohol by defendant cruise company. Further, plaintiff alleges the majority of the attack was captured on the ship’s security surveillance footage, which either wasn’t being properly monitored or else was being monitored and the employees chose not to intervene. This, plaintiff alleges, amounted to a failure to exercise reasonable care for his safety, resulting in serious physical and emotional injuries.

With regard to intentional infliction of emotional distress, plaintiff alleges that after the assault was reported to defendant company, he was questioned about the incident by cruise line officials while in the same room with one of the assailants, who had threatened to cut his head off and throw him overboard if he told anyone. Plaintiff alleges the cruise line purposely set up its interview of him this way in order to deter him from reporting the incident to federal officials onshore, which demonstrated reckless indifference for his well-being.

The 11th Circuit denied the defense motion to dismiss the complaint, finding plaintiff had presented adequate evidence (enough to survive a motion to dismiss prior to trial) that:

Defendant cruise line owed a duty of care to monitor security cameras;
Defendant had notice of dangerous conditions within restricted areas of the ship, given past lawsuits and allegations alleging sexual assault over at least a three-year period prior to this incident, which was why those security cameras existed in those spots in the first place;
Criminal acts of third-parties in this case could be deemed foreseeable, in this case both because assailants were allegedly overserved alcohol and visibly intoxicated and because security cameras had been installed – presumably for safety reasons.

The case will be allowed to continue to trial.

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

Additional Resources:

L.A. v. Royal Caribbean Cruises, Ltd., June 22, 2018, U.S. District Court Southern District of Florida

More Blog Entries:

$19M Award For Railroad Car Accident Death Affirmed, June 29, 2018, South Florida Tourist Injury Attorney Blog

Study: One-Third of Young Adults Ride With Drug-Impaired Driver

Ansara Law Personal Injury Attorneys — Wed, 04 Apr 2018 19:29:30 GMT

One out of every three young adults has recently ridden in a vehicle with a driver who was impaired by drugs. That’s according to a recent analysis by researchers at Colorado State University, with findings published in the Journal of Studies on Alcohol and Drugs. Furthermore, the study shows that for the first time, youth are more likely to be in a vehicle with a driver who is under the influence of marijuana as opposed to being drunk.

As our drunk driving injury attorneys in Fort Lauderdale know, there could be a lot of different reasons for this. One is that this is one of the first studies to ask teens and young adults about the kind of substance used by an impaired driver, rather than just asking whether they were impaired at all. That said, there is good reason to speculate crashes involving cannabis-impaired drivers and those impaired by other drugs has risen, relative to the number of drunk driving accidents.

The 2016 National Survey on Drug Use and Health revealed nearly 21 million people 16 or older drove under the influence of alcohol in the past year, while nearly 12 million drove under the influence of illicit drugs. Marijuana is the most found drug in the blood of drivers found in crashes – just after alcohol. Recent research seems to indicate marijuana may not be even more prevalent than alcohol in drivers involved in fatal crashes; However, we must be careful with that data because while the drug is present in the system’s of an increasing number of drivers, that doesn’t automatically mean it was a causal factor.

And herein lies one of the challenges for injury attorneys in Florida marijuana-impaired driving cases. We know that marijuana intoxication causes a person to be a poorer driver. It causes slower reaction time and coordination. It can cause dizziness or drowsiness and an altered level of attention to the road. All of this can contribute to a crash. The problem, however, is that impairment due to marijuana is not as easily identified as that involving alcohol. That’s because marijuana stays in the system much longer than alcohol, meaning it can still be in the body but not be a clear indicator of impairment, while chemical tests showing high traces of alcohol almost certainly mean impairment. That makes it tougher for police to prove their cases also.

The good news for you is that the proof burden in civil injury lawsuits is much lower than for criminal cases. Further, we don’t necessarily need to prove the other driver was high in order to show he or she was negligent in breaching the duty of care to be a reasonably safe driver. While evidence of marijuana use can be presented as evidence that one was negligent, it’s not necessarily enough in and of itself to prove that a driver was negligent and liable to pay your damages.

In the Colorado study, researchers asked whether young adults (just graduated from high school) had in the last year ridden in a vehicle with someone who had been drinking alcohol? The question was repeated for several different drugs. When asked about marijuana, nearly 25 percent responded in the affirmative, compared to 20 percent of those who agreed they had ridden with an alcohol-impaired driver. Some individuals indicated they had ridden with more than one driver or drivers impaired under more than one substance.

A person’s decision to knowingly get into a vehicle with someone who is impaired could be used as evidence of comparative negligence in your injury lawsuit, but it will not bar your claim.

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

Additional Resources:

CSU study: One-third of young adults have ridden with an impaired driver, March 21, 2018, By Jeff Dodge, Colorado State University

More Blog Entries:

Negligent Auto Repair Can Be Grounds for Car Accident Lawsuit, March 20, 2018, Fort Lauderdale Car Accident Lawyer Blog

Cooperation With Auto Insurer Investigation Imperative for Coverage

Ansara Law Personal Injury Attorneys — Tue, 05 Sep 2017 19:35:18 GMT

Your auto insurance policy is a contract. It outlines your rights and your obligations, and as long as it isn’t ambiguous or contrary to public policy, the terms of it are most likely binding. One of the common terms is the obligation of insured to cooperate with the investigation.

This does not mean you are required to give a statement before talking to an attorney. But it does mean you may be required to testify under oath at the request of the insurer, or else risk foregoing coverage.

This was exactly what happened in a recent Kentucky Supreme Court decision wherein substantive issues of material fact relating to the crash were in question.

According to court records, plaintiffs were passengers in a rear-end crash involving an alleged hit-and-run driver. Plaintiffs and driver were injured. All filed a claim against driver’s auto insurer for coverage – both personal injury protection benefits (PIP) and uninsured motorist coverage. PIP is a no-fault system of coverage that provides for a portion of medical bills and lost wages. UM coverage, meanwhile, is available for those whose injuries aren’t fully covered by PIP and yet the at-fault driver either lacks insurance or is not identified (as is the case in a hit-and-run accident).

The insurance company agent initially allocated PIP benefits to each of the claimants. However, following what the agent described as inconsistent statements by claimants on substantive issues, as well as numerous car accident claims filed by these same individuals in the last 12 months, the insurer sought more information about the car accident. Pointing to the terms and conditions of the policy, the insurer asked claimants to submit to being questioned under oath.

The driver of the vehicle agreed to these terms, underwent questioning and subsequently was awarded UM benefits.

The passengers, however, refused to be questioned under oath. As a result, the insurer denied them any further coverage beyond what was available for PIP.

Plaintiffs then filed a car accident lawsuit against the auto insurer, seeking UM benefits.

Plaintiffs argued they should not have needed to undergo such questioning because the insurer did not have a court order and the questions pertained to their medical history. The trial court, however, granted a defense motion for a declaratory judgment, finding plaintiffs were compelled via the terms of the policy to submit to questioning. Their failure to do so was a forfeiture of the benefits therein.

The appellate court reversed, siding with plaintiff’s reasoning that the insurer was required to obtain a court order before it could compel claimants to testify under oath.

Insurer the appealed to the state supreme court, which reversed the appellate court’s ruling. The court reasoned that previous case law did not prevent the insurer from requiring claimants to submit to reasonable questioning regarding substantive issues of the accident. Further, while conceding that sometimes questions pertaining to the accident and medical issues could intertwine, the state high court indicated it would trust lower courts to properly analyze the distinction between these types of question and allow or prohibit such lines of questioning accordingly.

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

Additional Resources:

State Farm Mutual Automobile Insurance Co. v. Adams, Aug. 24, 2017, Kentucky Supreme Court

More Blog Entries:

Injury Claimant’s Marijuana Use Excluded in Trial, $3.3M Damage Award Affirmed, Aug. 15, 2017, Fort Myers Car Accident Lawyer Blog

Report: Fewer Successful Malpractice Claims in the U.S., But Higher Payouts

Ansara Law Personal Injury Attorneys — Thu, 13 Jul 2017 22:03:05 GMT

A recent report by Harvard Medical School revealed the rate of medical malpractice claims paid out in the U.S. has dropped substantially over the last 20 years – by 56 percent. Meanwhile, the average payout for successful claims has climbed by nearly 25 percent, reaching about $353,000 between 2009 and 2014, up from about $287,000 in the 1992-1996 time frame.

Health insurance rates – one of the primary justifications for imposing damage caps and other limitations on these claims, making them harder to win – have risen astronomically. NBC News reported recently that health insurance has risen almost every year, and it’s gone up faster than wages and inflation. They have risen 213 percent since 1999 for family coverage, according to the Kaiser Foundation. By comparison, wages rose 60 percent during that time while inflation rose 44 percent. Health care spending accounts for 17 percent of the U.S. economy, whereas in 1980, it was just half that.

The Florida Supreme Court addressed this very issue in its 2014 5-02 ruling in McCall v. U.S., where it ruled damage caps on medical malpractice lawsuits ending in death are unconstitutional. The court cited the Eighth Amendment’s equal protection clause, but noted the wrongful death noneconomic damage cap did not bear a rational relationship to the stated purpose, which was the alleged medical malpractice insurance crisis in Florida.

The court ruled the damage caps failed the rational basis test because they did not serve a legitimate governmental purpose. Although the state legislature, in passing the damage caps, noted that Florida was “in the midst of a medical malpractice insurance crisis of unprecedented magnitude,” such that doctors were retiring early, leaving Florida or never moving here in the first place, evidence didn’t bear this out. The evidence indicated that the number of doctors in Florida was actually growing at the time this law passed.

And despite the assertion that health care costs would skyrocket but for the passage of these damage caps, costs to the average consumer clearly have not been mitigated just by passing caps that limit recover of those who were most egregiously wronged by them.

Meanwhile, we know that tort reform in Florida and elsewhere has had a chilling effect on medical malpractice lawsuits here and throughout the country. Injury attorneys accept these cases on a contingency fee basis, meaning plaintiffs don’t have to pay anything up front (as most cannot) and attorneys are only paid a percentage if they win the case. Because tort reform measures have made it exceedingly difficult to win these cases, fewer skilled attorneys are willing to take them on.

This is one of the reasons medical malpractice plaintiffs need to consult with a law firm that is well-resourced and prepared to cover some of the upfront costs necessary, such as hiring expert witnesses who will be willing to testify – prior to trial – to meet necessary pre-trial proof burdens.

The Harvard analysis showed that of the 280,000 claims paid between 2009 and 2014, only 8 percent came out over $1 million. Approximately one-third of the total number of claims involved a patient death. The No. 1 complaint? Diagnostic error.

Although some may be quick to say that fewer paid claims could mean doctors are providing safer care, other studies suggest medical errors aren’t declining, but that claims are getting tougher to win.

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

Additional Resources:

Fewer Successful Malpractice Claims in U.S., But Higher Payouts, March 27, 2017, By Dennis Thompson, HealthDay

More Blog Entries:

Florida Birth Injury Lawsuit Settles for $2.3 Million, July 9, 2017, Fort Lauderdale Injury Lawyer Blog

Fort Lauderdale Pedestrian Accident Risk Concerns Authorities

Ansara Law Personal Injury Attorneys — Wed, 10 May 2017 17:41:13 GMT

Recently, three tourists were injured in Fort Lauderdale after they were struck by a vehicle on Dania Beach Road. All three were family members on vacation from Utah. All were seriously injured, and one lost her foot.

According to news reports, the trio were reportedly walking back to their hotel along Southwest 42nd Street after dinner. They were in a wide swath of grass when a pickup truck driver veered toward them and crossed over from the westbound lane to the eastbound lane and then onto the shoulder of the road. Authorities said speed and alcohol are likely factors in this pedestrian accident.

Florida – and South Florida in particular – is a perilous place for pedestrians, and has been for some time. Addressing these issues may take an approach that considers better traffic engineering and more targeted enforcement. However, those efforts can only go so far if drivers continue to disregard our traffic laws and the safety of pedestrians. Two recent reports show the problems, at least for now, aren’t getting better.

The Governors Highway Safety Association recently released its 2016 preliminary data on Pedestrian Traffic Fatalities by State. It’s a 38-page report that begins with this: The number of pedestrian accident deaths in the U.S. has increased by 25 percent from 2010 to 2015, while total traffic deaths climbed by about 6 percent.

The latest figures, looking at statistics from the first six months of 2016, during which they noted an increase of 7 percent from the previous time frame in 2015. However, after adjusting for the under-reporting in those preliminary figures, the number of pedestrians killed last year is estimated to have increased by 11 percent compared with 2015. That’s the largest annual increase in 40 years – the second largest being from 2014 to 2015.

What’s more, pedestrian deaths as a portion of the total number of traffic deaths has also risen, from 11 percent back in 2006 to 15 percent in 2015. Based on this preliminary data, it’s believed about 6,000 pedestrians died nationally last year. Four states – Florida, California, Texas and New York – accounted for 42 percent of those.

Now let’s talk specifically about state-level data.

In Florida in the first six months of 2016, there were 301 reported pedestrian accident deaths. That’s compared to 277 during the same time frame – January through June – of 2015, an 8.7 percent increase. It wasn’t the largest spike, but it was higher than the national average increase of 7 percent.

In terms of sheer numbers, Florida ranked No. 3, with California and Texas both counting more fatalities. However, consider that both of these states have population numbers that far exceed our own, which means the rate of pedestrian fatalities is much higher here than the other two states. New York ranked 4th.

The Florida Department of Highway Safety and Motor Vehicles released a report late last year detailing traffic accident deaths from 2015 as compared to 2014. With regard to pedestrian accidents specifically, state officials reported there were:

9,085 reported pedestrian accidents in 2015 – a 2.79 percent increase from a year earlier.
632 pedestrian accident deaths in 2015, an increase of 4.3 percent from the year before.
7,870 pedestrian accident injuries in 2015, a 1.72 percent increase from 2014.

Some of the strategies outlined by the GHSA to reduce pedestrian accident fatalities and injuries include:

Separating pedestrians from motor vehicles by creating refuge islands, building more sidewalks and overpasses, provide ample crossing time at traffic signals;
Making pedestrians more visible to drivers by improving street lighting and designing high-visibility crosswalks;
Engineering and enforcing measures to lower speeds by creating “road diets,” roundabouts, traffic-calming devices (i.e., speed bumps and curb extensions) and automated enforcement in addition to traditional enforcement;
Increasing public awareness through various public information campaigns.

If you have been injured or hurt in a Fort Lauderdale pedestrian accident, you may have a number of legal avenues from which to pursue compensation.

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

Additional Resources:

Pedestrian Traffic Fatalities by State, March 2017, GHSA

More Blog Entries:

FHP Launches Program to Help Solve Hit-and-Run Crash Cases, April 3, 2017, Pedestrian Accident Lawyer Blog

Legislators Seek to Toughen Penalties for Distracted Drivers

Ansara Law Personal Injury Attorneys — Tue, 17 Jan 2017 14:07:02 GMT

Every year, thousands of people in the U.S. die in distracted driving accidents – 3,400 in 2015, to be exact. While most states, including Florida, have some type of law on the books that aims to curb these incidents. But there are plenty of traffic safety advocates who say these measures aren’t doing enough.

Just take Florida, for example. F.S. 316.305 went into effect in 2013 (and was one of the last texting-and-driving bans in the country to be enacted). The statute prohibits a person from operating a motor vehicle while manually typing or entering multiple letters, numbers, symbols or other characters into a phone or wireless communication device. So far so good, right? But there are a few issues. First off, it’s a secondary offense, which means police can’t initiate a traffic stop on this basis alone; they can only issue a citation if they stop a driver for another offense. Even if they do ticket the driver, it’s only a $35 citation for a first-time offender. Not much of a deterrent. Beyond that, the law doesn’t ban talking (which studies have shown can be just as distracting) or dialing a number (and it can be tough for an officer to discern the difference between that and texting from outside the vehicle, especially if it’s moving). Also, it doesn’t address the expanding technology, which includes video chats.

Now, there are two bills on the table to enhance penalties for those who violate Florida’s current ban on texting and driving. HB 47 would increase the fine (doubling it for offenses in school zones or designated crossings) and also make the violation a primary offense, as opposed to a secondary offense. Meanwhile, HB 69 targets drivers 18 or younger, and would make the offense primary only for these motorists.

Meanwhile, other states are taking even more drastic measures. In California, for instances, the New York Times reports a new law has been enacted that bans drivers from even holding mobile devices. The law law went into effect January 1st and it builds on an earlier state law that prohibits drivers from talking and texting, but didn’t stop them from streaming video or using apps like Twitter, Facebook and Snapchat.

You may recall late last year, a Texas couple filed a federal lawsuit against Apple following a 2014 car accident that killed their 5-year-old daughter. Investigators reported the at-fault driver had been using Apple’s FaceTime app and wasn’t paying attention to the stopped traffic ahead. Plaintiffs allege the technology firm has the ability – and even a patent on the technology – to prohibit use of the app by drivers in moving vehicles, but had not implemented it.

A spokeswoman for travel organization AAA told the Times she anticipates many other states will be introducing additional bills to curb distracted driving accidents. The National Safety Council reports that 1 in every 4 Florida car accidents involves at least one driver who is distracted. The risk of distraction for teens is even greater: Research has shown 60 percent of all crashes or near-crashes involving teen drivers involve smartphone-related distraction.

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

Additional Resources:

Can a Law Stop Distracted Driving? California Hopes to Find Out, Jan. 5, 2017, By Jonah Engel Bromwich, The New York Times

More Blog Entries: Modisette v. Apple Inc. – Distracted Driving Blamed on Crash That Killed 5-Year-Old, Jan. 10, 2016, Fort Lauderdale Car Accident Lawyer Blog

NHTSA: V2V Technology Could Prevent Thousands of Car Accidents

Ansara Law Personal Injury Attorneys — Sat, 07 Jan 2017 21:09:36 GMT

The National Highway Traffic Safety Administration is proposing a rule that would accelerate the kind of vehicle-to-vehicle technology that would allow cars to “talk” to one another, and ultimately prevent accidents.

Under the proposed rule, all new cars and like trucks would communicate wirelessly not just with one another, but with traffic lights and other roadway infrastructure. NHTSA officials say the technology has the potential to transform driving and dramatically slash the number of traffic deaths every year. The rule would be mandatory for all new model vehicles, if the rule is approved.

So how exactly would this work? Well first, it’s important to outline what V2V is. It is a type of crash avoidance technology that hinges on the communication of information between nearby vehicles that can warn drivers about possibly hazardous situations that might lead to a collision. For instance, V2V technology could alert a driver that the vehicle up ahead is breaking, so they need to slow down. It could also inform a motorist that it isn’t safe to go through an intersection because another vehicle – one that can’t yet be seen by the driver – is fast approaching that same intersection. The information communicated would involve short-range data (about 300 meters) that would include other vehicle information such as:

Location
Speed
Direction
Breaking status

This information exceeds what can be gleaned from the current cameras, radar and ultrasonic sensors that many vehicles are currently affixed with. V2V communications can also detect a threat much sooner than camera sensors or radar. In fact, the data is shot out at a rate of about 10 times per second.more

The proposed rule is actually more than a decade in the making, and involves input from auto manufacturers, as well as state, federal and local transportation departments and academic institutions.

Those who study the technology say it will provide a 360-degree awareness of what’s happening all around us, which could prevent or mitigate the severity of approximately 80 percent of car accidents that don’t involve alcohol or drugs. There are approximately 30,000 fatal crashes in the U.S every year, and roughly a third of those involve drunk drivers.

The Alliance for Automobile Manufacturers has said it is reviewing the exact proposal, but overall agrees that V2V is likely to be an asset offered complementary to other automated safety features that are available in many new model vehicles. The proposal would require all of these systems to essentially speak the same language with some standardized messages so that drivers wouldn’t have a false sense of security just because another nearby vehicle didn’t “talk” to theirs.

In addition to helping to prevent crashes, the technology also has the potential to help reduce congestion. Traffic lights would have an idea of how long they should stay green because they would be able to sense the level of traffic. That could help lower unnecessary wait times. The technology could also alert drivers if there is a a great deal of congestion on a planned route, allowing motorists the opportunity to plan an alternate route.

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

Additional Resources:

Government to Require Cars Be Able to Talk to Each Other, Dec. 13, 2016, Associated Press

More Blog Entries:

Delray Beach Intersection Won’t Get New Light, Despite Fatal Crash, Dec. 10, 2016, Fort Lauderdale Car Accident Lawyer Blog

New Year’s Eve Poses Drunk Driving Risk on South Florida Roads

Ansara Law Personal Injury Attorneys — Sat, 31 Dec 2016 21:25:08 GMT

The holidays are a time to spend with family and loved ones and celebrate the season. People especially look forward to New Year’s Eve and the chance to start all over again with a clean slate. But sadly, for far too many people, New Year’s is a time of endings. That’s because there is a surge in drunk drivers. Revelers are out late to ring in the New Year, and fail to plan ahead, call for a ride or just stay where they are. Instead, they risk their own lives – and the lives of their companions and everyone else sharing the road – to make it to their destination.

Technically and statistically speaking, New Year’s Eve isn’t actually horrible when to impaired drivers. The worst comes after midnight, on New Year’s Day. According to the Insurance Institute for Highway Safety, more than half of all fatal crashes on New Year’s Day involve a driver who was drunk or impaired. Intoxication by alcohol is typically measured by whether one had a blood-alcohol concentration that exceeded 0.08.

New Year’s Day exceeds even July 4th when it comes to the percentage of fatal crashes stemming from alcohol intoxication. On that day, 42 percent of all deadly accidents involve a drunk driver. The third is St. Patrick’s Day, on which 40 percent of all roadway deaths involve impaired motorists.

If you are imbibing this New Year, consider reminding yourself about the seriousness of the consequences of driving drunk and take the time to plan ahead. Bear in mind that even if you “sleep it off” for a few hours, it may not be enough if you really indulged. Even just having a hangover, you could technically still be too drunk to drive. And there isn’t any fast way to sober up. You can’t eat your way sober. You can’t drink water or coffee to make yourself sober. The only thing that will make you sober, eventually, is time.

Part of the problem too is that people just aren’t the best at judging whether they have had too much to drink. A single, standard drink – a 12-oz beer or a 5-oz glass of wine – is all an average person can reasonably be expected to metabolize in an hour. There are other variables that could affect that, but this is the average. Go just a bit beyond that, as many people do on New Year’s Eve, and you will quickly find yourself over the limit. Now this generally wouldn’t be a problem, unless you then choose to get behind the wheel of a vehicle.

What if it’s a friend who wants to drive? MADD suggests:

Never letting anyone get behind the wheel of a car drunk, if you can help it.

Calmly suggest other alternatives.
Take their car keys.
If you can’t stop them, call law enforcement.
Never get in a car with someone who is drunk.
Contact law enforcement if you spot a motorist driving erratically.
If friends come over and drink, make sure they have a safe ride home or a place to stay.

Drunk driving simply isn’t worth the price – not just the dollar amount, but the potential loss of innocent lives. If you have been injured or have lost a loved one in a Fort Lauderdale drunk driving accident, our injury lawyers can help you determine the best course of legal action.

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

Additional Resources:

Plan Ahead this New Year’s Eve, December 2012, MADD

More Blog Entries:

Motorcycle Riders in Construction Zones Face Hazards, Nov. 11, 2016, Fort Myers Drunk Driving Accident Lawyer Blog

Anderson v. Hilton Hotels Corp. – Florida Supreme Court Weighs Right to Attorney Fees for Injury Plaintiff

Ansara Law Personal Injury Attorneys — Mon, 14 Nov 2016 14:57:38 GMT

A man who successfully sued a hotel chain and several other defendants for third-party liability stemming from a criminal attack at a hotel has now won another victory for attorney’s fees before the Florida Supreme Court.

At issue was F.S. 768.79 and whether a trio of defendants – named as one entity in jury instructions – received sufficient offers of settlement to trigger the requirement that they cover plaintiff’s lawyer fees.

The statute allows that if an offer of settlement is made (by either side) and isn’t accepted within 30 days and the matter then goes to trial and is decided in favor of the opposite party (at least 25 percent less than the offer made by a defendant or 25 percent more for an offer made by plaintiff), the losing side has to pay the attorney’s fees of the other party. The goal is to encourage litigants to accept reasonable offers and thus reduce the time and expense of a trial. (It should be noted that most civil injury lawyers accept cases on a contingency fee basis, which means they are only paid a percentage of your total damage awards if you win, but nothing if you don’t win. An award of attorney’s fees means your financial obligation to your lawyer wouldn’t be taken out of your final damage award.) more

The case of Anderson v. Hilton Hotels was a bit complicated, however, because it involved multiple defendants, including three that were referred to – without objection – as a single entity during jury instructions.

According to court records, plaintiff was the victim of an armed robbery, carjacking and shooting in the parking lot of an Embassy Suites hotel in Central Florida.

Subsequently, plaintiff and his wife filed a lawsuit against:

The hotel;
The investment company;
The management company;
The security company.

They alleged negligence and premises liability for each of them. The hotel chain was the parent company of Embassy Suites. The investment company was also owned by the hotel chain. The management company oversaw daily operations at the site where plaintiff was attacked. The security company was hired to make sure the site was safe. Plaintiff sought damages for medical expenses, lost wages and pain and suffering. His wife sought damages for loss of consortium.

Three years after the incident, after plaintiff had filed his personal injury lawsuit, he made offers of settlement to each of the defendants:

$650,000 to settle with the hotel;
$100,000 to settle with the investor;
$650,000 to settle with the management company;
$300,000 to settle with the security firm.

Collectively, this amounts to $1.7 million.

His wife also issued an offer of settlement, asking for:

$15,000 from the hotel;
$15,000 from the investor;
$25,000 from the management company;
$25,000 from the security firm.

Collectively, this amounts to $80,000.

Prior to trial, plaintiff’s wife voluntarily dismissed her cause of action and her husband proceeded in the case alone. The companies rejected these settlement offers.

For ease of reference, the hotel, investor and management company were collectively referred to as “Embassy Suites,” while the security firm was named separately. This was true even though “Embassy Suites” was not a specifically named party in the complaint. Plaintiff didn’t object to this.

Jurors at a second trial (the first ended in mistrial) found “Embassy Suites” was 72 percent liable, while the security company was 28 percent negligent. Jurors awarded plaintiff a total of $1.7 million in damages. The “Embassy Suites” portion of that was $1.25 million.

Plaintiff then sought coverage of attorney fees, pursuant to F.S. 768.79. Trial court denied this as did the 5th District Court of Appeal. The 5th DCA determined that because plaintiff agreed to have the three entities treated as one by jurors and because the judgment obtained against this singular entity was actually less than the sum of the demands for judgment made against them (when the wife’s settlement offers were factored in).

The Florida Supreme Court quashed that decision. The court rejected the suggestion that plaintiff’s offer was actually a joint offer to settle the claims of both he and his wife.

The defense had argued that plaintiff served individual offers of settlement on each plaintiff, yet obtained a judgment only against a single entity and that judgment couldn’t be compared to the individual offers made. Alternatively, defense argued plaintiff offered to settle with the collective “Embassy Suites” defendants for $1.4 million, yet only obtained from them $1.25 million – which doesn’t meet the statutory 25 percent threshold.

Courts had previously held that the Second District held it was improper to combine separate offers and then compare them to a judgment obtained when evaluating a party’s entitlement fees. The state supreme court noted that at the very least, plaintiff’s offer to the security firm alone created the right to attorney’s fees (he offered to settle for $300,000 and was awarded $456,000). Further, because the offers can’t be aggregated, the court was obliged to compare the amount awarded to the single entity ($1.25 million) with the settlement offers. That meant the award was 189 percent in excess of the offers issued to the hotel and the management company and 1,225 percent in excess of the offer made to the investment firm.

Plaintiff, therefore, was entitled to attorney’s fees.

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

Additional Resources:

Anderson v. Hilton Hotels, Nov. 3, 2016, Florida Supreme Court

More Blog Entries:

$7M Motorcycle Accident Lawsuit Filed by Widow Against Driver, Car Owner, Bar, Oct. 23, 2016, Fort Lauderdale Injury Lawyer Blog

Vasquez v. American Cas. Co. – Workers’ Compensation and UIM Benefits

Ansara Law Personal Injury Attorneys — Sun, 16 Oct 2016 16:39:04 GMT

If a worker is struck by an under-insured driver while on-the-job, it can result in a unique situation for compensation. As you probably know, most injuries that arise out of the course and scope of employment are going to be covered by workers’ compensation benefits. However, it can get a bit thorny if you settle with your workers’ compensation carrier based on the assumption you’ll still collect uninsured/ underinsured motorist benefits.

Florida statute gives auto insurers the right to set off its obligation not just by what workers’ compensation actually paid, but by the full amount you were entitled to receive. This is spelled out in Fla. Stat. § 627.727. That’s why it’s so important to have an experienced injury attorney in Fort Lauderdale overseeing your case. You don’t want to undercut your rights with UM/UIM coverage by settling too soon.

There could be other considerations as well. Recently, the New Mexico Supreme Court was asked to resolve an issue from a federal district court concerning state law as it pertained to the UIM benefits a deceased worker’s family was entitled to collect after already receiving workers’ compensation death benefits. The case was Vasquez v. American Cas. Co. of Reading.more

According to court records in the case, a man was killed at work when he was struck by a steel beam that had fallen off a forklift while he was working at a wrecking and salvage yard. A co-worker had been operating that forklift and hopped off to make sure the beam was secure. In so doing, he left the forklift unattended, causing the beam to slide off the forks, hitting the victim.

Plaintiff, representative of decedent’s estate, pursued and collected workers’ compensation benefits. Because the incident occurred as a result of negligent operation of a motor vehicle (i.e., a forklift) plaintiff sought underinsured motorist benefits from decedent’s own auto insurance company as well, which plaintiff collected. However, plaintiff then tried to collect additional UIM benefits from a policy held by decedent’s employer.

Insurer denied coverage indicating that exclusivity provisions of workers’ compensation law meant that the UIM benefits were not available for this incident. (Workers’ compensation is considered the exclusive remedy for work-related injuries. That means workers can’t sue their own employer for negligence, but they may be able to pursue third-party litigation where appropriate.)

Plaintiff sued insurer. The federal district court initially denied defense motion to dismiss because the exclusivity provision doesn’t stop an injured employee from suing a third-party motorist to get the difference between their workers compensation benefits and UM/UIM benefits. Lawmakers never intended to prohibit workers to collect damages from third party tortfeasors. However, the district court later reconsidered and vacated this ruling after it reasoned decedent was killed in an accident caused by his co-worker, not a third party.

After handing down this ruling, the court certified an inquiry to the state supreme court to ask whether a worker injured in the course of employment by a co-worker operating a vehicle owned by the employer was someone who was legally entitled to collect damages on the employer’s UM/UIM policy. The court responded: No. Plaintiff would not have been able to hold the co-worker liable due to exclusivity provisions, and thus, plaintiff could not collect UM/UIM benefits.

Our experienced Fort Lauderdale injury lawyers can help you determine the best course of action under your circumstances.

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

Additional Resources:

Vasquez v. American Cas. Co. of Reading., Oct. 13, 2016, New Mexico Supreme Court

More Blog Entries:

Sims v. Kia Motors of America – Plaintiff’s Expert Witness Testimony Excluded in Product Liability Lawsuit, Oct. 12, 2016, Fort Lauderdale Wrongful Death Attorney Blog

De La Torre v. Gallardo – Florida Dram Shop Law

Ansara Law Personal Injury Attorneys — Wed, 06 Apr 2016 00:25:19 GMT

When a drunk driver crashes into your vehicle in Florida, what recourse do you have to recover damages?

The answer depends on the underlying circumstances, but generally, you will want to explore:

The at-fault driver/ insurance;
The owner of the vehicle/ insurance;
The employer of the at-fault driver (if he or she was working);
The establishment that served the at-fault driver alcohol.

That last one – which falls under Florida’s dram shop law – will only work if the drunk driver was either under 21 or known to the establishment to be habitually addicted to alcohol. Per F.S. 768.125, those are the only circumstances under which an establishment may be held accountable for the injurious actions of a drunk driver.

The goal of a dram shop law is to stop commercial establishments from over-serving people who might not be capable of determining when they’ve had too much to drink. However, there are many people who say it doesn’t go far enough. In fact, there are many other states that allow injured victims of drunk drivers to sue establishments that continued to serve alcohol to patrons whom they knew or should have known they were drunk.

Although that is not the case in Florida, there are some plaintiffs who continue to test the boundaries of the statute. One example of this was seen in the recent case of De La Torre v. Flanigan’s Enterprises, Inc., DBA Flanigan’s Bar and Grill.

According to court records, a woman was drinking at a bar one night in December of 2011. While there, she got drunk. At one point, the employees stopped serving alcohol to her and provided her with water in an attempt to “sober her up.”

Soon after, the driver got into her vehicle, crossed into oncoming traffic and struck a vehicle. Inside that vehicle were plaintiffs, and they were seriously injured.

The bar had an internal policy – not required by law – that was supposed to help stop patrons from driving away from the premises drunk. It involved either taking the patron’s keys and/or calling law enforcement to do so or contacting a taxi or sober driver for the employee.

However, on this night, the workers did not take this action.

Plaintiff sued the bar, alleging it had undertaken a voluntary duty to prevent the driver from leaving drunk, and that it was negligent in performing this duty.

The bar moved to dismiss the case, arguing the lawsuit was precluded by F.S. 768.125, and it had no statutory duty to stop an over-21 person about whom they had no prior knowledge of a history of alcohol abuse. Trial court agreed and dismissed the action.

Plaintiffs appealed. Although conceding that none of the statutory exceptions were applicable in this case, they contended liability wasn’t predicated on the sale of alcohol, but rather by the fact that the bar had undertaken a duty of care. Known as the so-called “undertaker’s doctrine,” it was noted in the 2009 Florida Supreme Court case of Wallace v. Dean.

It can be invoked when a person gratuitously or for consideration renders services to another as necessary for the protection of a third person and/or that person’s things and is therefore liable to that third person for physical harm resulting from his failure to exercise reasonable care in that undertaking.

However, Florida’s 4th District Court of Appeal ruled that the undertaker’s doctrine did not apply in this case. Florida law doesn’t require business owners ensure the safety of intoxicated persons who leave the premises and to impose that additional requirements on those who attempt to enact policies to reduce drunk driving would, the court ruled, be unfair and counterproductive.

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

Additional Resources:

De La Torre v. Flanigan’s Enterprises, Inc., March 9, 2016, Florida’s 4th District Court of Appeal

More Blog Entries:

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