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backsetball hoopA Note on Contracting Away Liability for Sports-Related Injuries

While reeling from the Toronto loss, and with the looming Whiteside and Wade contract negotiations riddled with uncertainly, Heat fans can find a modicum of solace in one thought:

Next year, we get Bosh back.

Or do we?

We Miamians love Chris Bosh. And for the sake of him and his family, let’s hope his blood clots disappear.

But what if the medical issues endure? What if playing next year carries the specter of grave personal injury or even death?

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waiver formIn recent years, liability waivers have become standard procedure in virtually every association between corporations and individuals.  Whether a jet ski tour, your typical gym membership, or even placing your child in summer camp, corporations of all sizes are aggressively protecting themselves with liability waivers.  In many cases, corporations are required to obtain liability waivers as a condition of their insurance policy.  These waivers contractually preclude individuals from pursuing any kind of claim in the event of injury, even those caused by the negligence of the corporation’s employees.  The waivers are typically buried within other tedious paperwork and executed by individuals without much thought.  After all, no one expects to become injured.  These waivers then become potentially devastating in the event of a serious or even fatal injury.  Because liability waivers are presumptively valid under Florida law, they deprive injury victims of their day in court on a daily basis.

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arbitrationBanks. Cell phone service providers. Social networking sites. Insurance companies. Nursing homes.

What do they have in common?

They all attempt to rob you, their customer, of your day in court. And, usually, they succeed.

Forced arbitration is the cancer of the American justice system.  Accompanying—indeed accelerating— the national decline in civil jury trials is the appearance of arbitration clauses in contracts, particularly consumer contracts. These clauses eliminate your right to have your case decided in a court of law, by a jury of your peers; limit the information you can discover to help win your case; and, in many cases, greatly reduce the amount of damages you can ultimately recover against the company you are suing. When an arbitration clause is enforced, your case skips court altogether, going instead to an arbitrator or a panel of arbitrators. This tribunal acts as judge, jury, and —often for plaintiffs’ claims— executioner.

In short, you should avoid arbitration clauses whenever possible. Should you brush up against one, you’ll need experienced legal counsel to protect your rights.

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Car_crash_2Suppose you are injured in an automobile collision caused by a negligent driver. You then go to a duly-licensed physician for medical care. You certainly trust your physician and her dedication to the well-being of her patients.  Ultimately, your physician provides treatment and even surgery.  Down the road of litigation, the negligent driver’s attorney claims that the surgery you underwent was medically unnecessary or unreasonable.  Assuming this treatment was “unreasonable,” should you be on the hook to pay for it?  Is it your fault if your physician provided unnecessary treatment by mistake or for financial gain? Of course not!

The Florida Supreme Court (Stuart v. Hertz Corporation) established long ago that a negligent party who injures another is liable not only for the resulting injuries, but is also liable for any medical negligence stemming from services of a competent physician.  This principle has been reaffirmed many times and even extended by Florida Courts to hold negligent parties liable for improper and unnecessary medical treatment performed by an allegedly unscrupulous physician.

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When we are engaged to represent a client and take on their case we become their advocate and we fight for them because they cannot. We give a voice to the voiceless. We fight for the injured. We champion their cause and their case with every resource and every ounce of talent and energy we have. We do this because, not only is it the right thing to do, but also because each client and each relationship we have with our clients is personal. We truly believe that our clients remain clients for life long after the case is resolved and long after we have achieved a financial recovery for them.

Set0001 - DSC_6054.JPGJust recently we resolved the case of a motorcycle accident victim who lost a leg as a result of a county employee running a stop sign. The inattentive driver rolled his truck up to the stop sign clueless to crossing traffic and our client’s oncoming motorcycle and blew right through the intersection without thinking twice. Our client had no choice but to lay down his bike to avoid a head on crash with the side of the truck and certain death. Unfortunately, the back wheels rolled over his leg resulting in a traumatic amputation at the knee. We undertook representation knowing full well that any real recovery was highly unlikely given that the negligent party was a county employee protected by the state sovereign immunity cap of just $200,000. With past hospital bills alone of over $400,000 we rejected the county’s settlement offer of $200,000. After two years of litigation, multiple lawsuits and incredibly creative and aggressive representation, we secured a multi-million dollar settlement for our client.

Today we handed him his first of several settlement checks. A very humble man, our client started to thank us but we stopped him from any such praise. The true thanks goes out to him and his resolve and for believing in us and giving us the honor of fighting for him. When we met, he was just coming out of surgery where he lost his leg. We were up front and honest with him about the financial obstacles that his case faced with sovereign immunity. We saw him crying and hopeless and full of anxiety about the future. With that we went to work and devoted two years to fight for him and obtain justice for our client. Through the case, we saw him fight through depression and readjusting to life as an amputee. It was his resolve that pushed us every day and knowing that he was fighting to regain his life, we would fight for him no matter what it took.

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Just because you have purchased an insurance policy with ample bodily injury coverage for your vehicles does not mean that you are adequately protected in the event that you become involved in a car accident. This is because bodily injury coverage pays out only if you cause an accident and injure somebody else.

If, however, you are struck and injured by another driver, you would at that point be at the mercy of the at-fault driver’s insurance policy for purposes of paying for your medical bills and lost wages, if need be. And that’s if the at-fault driver even has insurance to begin with. In fact, Florida ranks among the top states in terms of the number of uninsured or under-insured motorists on our roads. Therefore, it is all the more important that drivers purchase uninsured motorist coverage to protect you and your family in the event that you are injured in a car accident.

A 2014 study by the Insurance Research Council found the appalling truth: In Florida, 1 out of 4 people (23.8%) involved in a vehicle accident does not have insurance. Only Oklahoma ranks higher with 25.9%. In raw numbers, this means there are 3.2 million vehicles in Florida without insurance. Practically speaking, if you are involved in an accident, there is a 1 out of 4 chance that you will have to rely solely on your own insurance policy in order to repair your car, but most importantly, to treat for your physical injuries – and that does not even begin to address your claim for personal injury, which includes past and future pain and suffering.

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The vast majority of personal injury victims contact a lawyer intending to make claims against a specific entity for a specific wrongdoing. The victims often evaluate their case and form their own theories of liability before they are ever guided by an experienced trial lawyer. Unfortunately, many lawyers then evaluate cases based on their clients’ impressions without broadening their imagination and looking at the entire picture.

Our firm was recently contacted by a mother in reference to a potential medical malpractice case for her 12-year-old son. Our client’s concern was that her son underwent surgery to repair his fractured femur (thigh bone) with metal rods, and the metal rods ultimately broke free from the bone, requiring a painful second surgery. Our client thought this complication occurred because the first surgery was done negligently. Our firm investigated and concluded that the complication was likely an inherent risk of surgery rather than negligence.

Untitled-2.jpgFor many lawyers, the evaluation would have ended there. However, our firm inquired further and asked how the boy’s leg was fractured. Our client believed that was a dead end. She explained that the injury occurred when a 13-year-old girl accidentally fell on him at the girl’s house. As we learned more, it was discovered that the girl, who was much larger than the boy, had been physically harassing him for several days with unwanted horseplay. The girl’s father, who was supposed to be supervising them, knew of this abuse and failed to prevent it or separate the children. Our firm made a claim against the father’s homeowner’s insurance policy under a Negligent Supervision theory. Within just days of receiving our lawsuit, the insurance carrier offered their full policy limits of $300,000, to compensate our client’s son.

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As we approach the summer months in South Florida, we once again see the start of another boating season. Thousands of boaters in personal water craft will soon set out across our beautiful bays, sandbars, and offshore islands to take in all that our tropical paradise has to offer. As fun as a day spent out on a boat with friends and family can be, it is important to remember that boating can also be an extremely dangerous activity. Safety should always be the number one concern when planning for a day out on the ocean.

In 2014, Miami-Dade County ranked first in the state in boating accidents with 79. There were ten deaths due to boating accidents in the county alone, including four young adults who lost their lives in an extremely tragic collision near Dinner Key Marina on the 4th of July. In the Florida Keys, five people perished due to boating accidents in 2014.

safe boating is fun.jpgOur law firm has represented many individuals who were permanently injured in boating accidents. We have also represented the families of individuals who tragically lost their lives while boating. Regrettably, we have often seen that many of these accidents could have been prevented if simple boating safety provisions were obeyed.

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insurance-policy.jpgIf you or a loved one has been involved in an automobile accident or any other type of accident and sustained serious injuries you will want to know what compensation you can recover. Most attorneys will tell you that it depends on the liability, causation, degree of damages and the amount of available insurance. All of this is true, except that the amount of available insurance should not always be seen as the maximum amount you can recover.

Most lawyers will never look beyond the insurance policy and accept defeat that the insurance limits are the limits of available recovery. That is not always true. Over the past 15 years our office has recovered more than $26,000,000 more than the available insurance directly from the insurance companies when they engaged in bad faith handling of the underlying claims.

insurance policy limits.jpgThis amount does not include the millions more we have recovered from defendants personally above the insurance policy limits when there were no allegations of bad faith claims handling from the insurance carrier. When a defendant has traceable and collectible assets, your attorney should pursue those in order to maximize your recovery. We have done this by securing personal payments above policy limits and having personal property deeded to our clients including non-homestead properties. We recently were able to settle a claim for the policy limits of insurance, for additional cash money from the insured, and for multiple properties. In an inadequate security case, our firm secured a settlement for the policy limits and for an entire apartment building.

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We all know that consumer products can be dangerous if used improperly. Everything from vacuum cleaners to jet skis have large, orange warning decals posted on them instructing users, “READ THE OWNER’S MANUAL PRIOR TO USE.” In the owner’s manual, users will find an extensive composition of warnings, diagrams, and instructions for the safe use of the product.

Owner’s manuals are often the focal point in product liability cases where it is alleged that a product is dangerous or the manufacturer failed to provide adequate warnings. In such cases, trial lawyers will introduce owner’s manuals to point out the adequacy or inadequacy of warnings and instructions.

Surprisingly, owner’s manuals are largely ignored by trial lawyers in personal injury cases involving presumptively safe consumer products. Our firm has handled many cases in which hotels, attractions, and tour operators have severely injured our clients by misusing OM.gifconsumer products. Parasailing ropes break, picture frame supports fail, beach umbrellas fly into guests, bungee cords snap, and the list goes on.

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