Florida Injury Lawyer Blawg

Published on: June 13, 2012

Part One – “411 Pain” & Lawyer Referral Services – Florida Landscape of PIP Benefits & PIP Fraud Claims

Florida law provides that every car insurance company must provide $10,000 in PIP benefits to its insured – Florida Statute 627.736(1). For the past few years, the Florida legislator has made multiple attempts to reform the use of Personal Injury Protection benefits, and prevent further abuse, n order to continue the crackdown on PIP claims fraud which are at an all-time high.

How do PIP benefits work?

When a person is involved in a car accident, and sustains an injury that requires any kind of medical treatment, that person’s car insurance will reimburse (at an established rate) the medical bills incurred to treat them. Through PIP, car insurance companies are required to pay for medical treatment (as well as lost wages if applicable), up to $10,000. Once the PIP benefits are exhausted, the insured becomes responsible to pay for their own medical bills, either through their own private health insurance or out of pocket if they are uninsured.

PIP Fraud claims skyrocketing in Florida

Division of Insurance Fraud.jpg Last April, the Office of Florida’s Chief Financial Officer released staggering numbers indicative of a systemic-induced fraud. In the fiscal year 2010/2011, the Division of Insurance Fraud investigated 13,452 cases of insurance fraud, which ultimately resulted in 997 arrests and 804 convictions. In only one year, Florida Courts have ordered restitution amounting to more than $156 million to defrauded insurance companies.

The Florida Division of Insurance Fraud regularly issues a newsletter “The PIP Source” which summarizes the latest scams and arrests in PIP fraud cases. The latest edition can be downloaded here.
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Published on: June 12, 2012

Food poisoning resulting in the death of healthy 32-year-old mother

By Leesfield & Partners

It seems like every single year, a food borne outbreak occurs in multiple states around the country that leaves avid restaurant-goers and supermarket chains scrambling to find out what caused the latest epidemic. Again this year, the Centers for Disease Control and Prevention (CDC) has announced last week that a new E. Coli outbreak is currently underway and related cases have been identified in six States so far: Alabama (2), California (1), Florida (1), Georgia (5), Louisiana (4) and Tennessee (1).

Thus far, officials have yet to identify the product responsible for this latest round of food poisoning. The level of emergency was raised to an all-time high when Maelan Elizabeth Graffagnini, a 21-months-old infant died in New Orleans. Officials announced that the young child died from complications of E. Coli O145. (one of six types of shiga toxin-producing E. coli).

Florida residents have not been spared by these latest headlines and while the risk of contracting the latest food born bacteria is relatively low, Floridians should constantly remain careful about what and where they eat, in particular, South Floridians.

According to the Florida Division of Hotels and Restaurants, South Florida has received more restaurant violations than anywhere else in the State. The cities of Miami, Fort Lauderdale, and Boca Raton, rank in the Top 10 violating cities in the last 12 months. Miami leads the way with 37,048 violations alone this past year. Put all three cities together, and South Florida restaurants are responsible for more than 54,000 violations in one year, which represents more than a third of all violations among the top 10 violating cities.

As mentioned above, the city of Miami is the worst violator of all, with over 100 new violations each day on average. The consequences for consumers is usually mild symptoms of food poisoning, a long night of indigestion and a groggy feeling the next 48 hours. Unfortunately, in some instances, the result can be a lot more tragic, as we recently found out.

Leesfield & Partners has represented several victims of food poisoning and settled multiple claims, but none of them were more tragic than the most recent incident. A young woman of 32, a mother of 2 young children aged 2 and 14, picked up a beef chimichanga with salsa, guacamole, lettuce, cheese and chips one evening at a popular Mexican restaurant in Miami.

She ate her dinner and went to bed that night feeling fine, but she woke up violently ill sometime between 2 and 2:30AM. For the rest of the night and through the entire next day, she experienced symptoms of food poisoning, including vomiting, sweating, nausea, cramps, chills, and diarrhea. She was so sick that she could hardly get herself out of bed. Early that morning, a family member saw her go to the bathroom to throw up yet again. They spoke and they both agreed at that she ate something bad from the Mexican restaurant. A few hours later, she decided to report the restaurant to the Health Department, and filled out an online complaint form.
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Published on: June 11, 2012

Injury to Canadian tourists caused by lack of illumination in private parking lot

By Leesfield & Partners

A landowner owes two duties to its business invitee: (1) he must use reasonable care to keep his premises in a reasonably safe condition; and (2) he must give the invitee warning of concealed perils which are or should have been known to him, and which are unknown to the invitee despite the exercise of due care. Furthermore, a landowner is liable for injuries caused by inadequate lighting in that the lighting failed to show the true size, shape, and height of curbing over which patron tripped.

Recently, Leesfield & Partners resolved a personal injury claim on behalf of a Canadian tourist who sustained massive facial injuries when he tripped and fell face-first on the corner of a sidewalk in Palm Beach County. The incident was caused by the lack of illumination, which at the time, should have been in operation.

A local ordinances provides in part that minimum-maintained lighting shall be provided from dusk until thirty (30) minutes after the termination of business each operating day. According to records from the ambulance company and testimonies gathered from the witnesses, the incident occurred well after duck, at a time where multiple lighting poles should have been in operation. There were not.

As a result, this Canadian tourist, who was unfamiliar with the premises at dusk, tripped over an unlit obstacle and fell forward. He sustained multiple fracture to his nose and orbital bone which have caused life-altering and debilitating changes in his life, and personality. This claim was recently resolved before trial for $262,500.

The aggressive representation by Leesfield & Parters allowed to establish multiple failures on behalf of the defendant owner including:

Failure to provide adequate lighting to the premises so as to ensure the safety of business invitees

Failure to inspect the premises regularly and to maintain the premises so as to protect business invitees from encountering dangerous and hazardous conditions

Failure to inspect the lighting and lighting poles of the premises regularly

Violation of multiple local ordinances and Florida Statutes requiring minimum0maintained lighting at certain hours of the day

Published on: June 8, 2012

Drivers cheat death and escape fiery truck collision – Safety lessons to be learned

By Leesfield & Partners

The State of Florida has the highest number of traffic fatalities in the United States, behind California and Texas. Of those three states however, Florida has the highest ratio of fatal accidents per citizen, according to the United States Census Bureau, 2012 Statistical Abstract.

On average, there are over 2,800 fatal accidents occurring on the roads of Florida, and by the numbers, the most dangerous roads are in South Florida, specifically in Miami-Dade, Broward, Palm Beach, and Monroe County. Between these four counties, the number of fatalities caused by traffic accidents represents 25% of all fatalities in the entire State of Florida. Statistics are available here.

Thankfully, the latest horrific accident that occurred on June 7, 2012, at approximately 4 a.m., in Broward County, did not contribute to those statistics. Mike Jachles, Broward Sheriff Fire Rescue Spokesman, said that the two men involved in the terrible crash on U.S. 27 were “very lucky to be alive.”

Rafael Ferrer Rodriguez was traveling southbound on U.S, 27, just north of Griffin Road, when he began to worry that his truck may have a flat tire. Rodriguez slowed down, moved his truck off the shoulder of the road, and stopped the large vehicle short of the grassy slope, with about half of the truck still on the paved roadway. He got out of the truck’s cabin and walked to the back of his truck to put a warning triangle on the road in order to alert the oncoming traffic of his presence.

All of a sudden, before Rodriguez could place the emergency signal, Jose Soto Perez, who was also driving a large truck and traveling southbound at the time, struck the left side of Rodriguez’s parked trailer, causing both trucks to erupt in flames on impact.

Rodriguez was hit by his own trailer but only sustained minor injuries, while Perez was able to escape from his truck’s destroyed cab before the flames could reach him. Perez’s dog, who was in the driver’s cab when the accident took place, was also able to escape with his owner, but, disoriented, the dog was struck and killed by another vehicle who was traveling on U.S. 27.

While the Broward Sheriff’s Office has yet to issue a citation for this incident, most of the responsibility for causing this accident rests on Rodriguez’s actions when he failed to park his truck completely off the roadway, especially in the middle of the night. it is unclear whether Rodriguez turned on his flashing lights before he stepped out of the truck’s cab.
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Published on: June 7, 2012

Jail time if you kill someone while texting and driving … in Massachusetts

By Leesfield & Partners

Last week we reported on the ongoing criminal trial of Aaron Deveau in Massachusetts. Today, the 18-year-old was found guilty of vehicular homicide, and causing a fatal traffic accident while texting on his cell phone. This landmark case is the first time in the state of Massachusetts that such charges have resulted in a conviction. Found guilty, Deveau was sentenced to 2 1/2 years behind bars, and will serve one additional year in jail.

On the day of the accident, the teenager had sent and received 193 text messages. Deveau faced a maximum sentence of four years. He was also sentenced to 40 hours of community service, as well as having to surrender his driver’s license for 15 years.

After the accident, Deveau deleted several text messages from his phone, but investigators were able to ascertain that the teenager was driving and texting at the same time through their forensic research team.

This tragic incident caused the death of 55-year-old Donald Bowley Jr., who left 3 children behind, and catastrophic injuries to the two other occupants in Bowley’s vehicle.

deveau trial.jpg In convicting Deveau, the State of Massachusetts has made an example of this case for all the citizens of Massachusetts who continue to text while driving, even though it has been a violation of the laws of Massachusetts since the year 2010. Even though Deveau showed remorse and regret when he said in open court that he wished he could “take it all back”, before apologizing the to Bowley family, District Court Judge Stephen Abany realized that this case needed an exemplary sentencing.

When sentencing Deveau, Judge Abany said that deterrence “really seems to come to play in this case,” and “[p]eople really want to be safe on the highways.” People need to “keep their eyes on the road, keep their eyes on the road,” he added.
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Published on: June 1, 2012

Florida still refuses to ban texting while driving

By Leesfield & Partners

Aaron Deveau is currently on trial, facing criminal charges including motor vehicle homicide by negligent operation, negligent operation of a motor vehicle, being an operator under 18 using a mobile phone, being an operator reading or sending an electronic message, driving over marked lanes, and two counts of negligent operation and injury from mobile phone use.

This Massachusetts criminal case could be the first landmark case in the controversial topic of texting while driving, after the 17 year-old-teenager, Deveau, collided head-on with a pickup truck on Feb. 20, 2011, and killing 55-year-old Donald Bowley.

Had this accident occurred in Florida, Aaron Deveau would be freely walking down the streets of the Sunshine State with the comforting knowledge that he will never face criminal charges. The victim’s family on the other hand would only have a civil remedy against the negligent teenager.

In 2010 the state of Massachusetts has passed a law banning the use of mobile phones while operating a motor vehicle. A contrario, Florida is one of only six states in the country which continuously refuses to ban the practice of texting and driving. In fact, this year marked the 7th year in a row that the Florida legislature could have voted on a total or partial ban of the use of handheld mobile phones while driving and adjourned without producing a single distracted driving law.

Map of USA - Texting and Driving Ban.jpg

Image above courtesy of the Insurance Institute for Highway Safety

Ira H. Leesfield, as Senior Managing Partner of Leesfield & Partners, has continuously been an advocate in favor of a total ban of the use of mobile phones when driving a motor vehicle. Recently, Ira Leesfield highlighted the main concerns and legal theories under which plaintiffs could attempt bringing civil cases against negligent drivers who caused injuries while using their cell phone: Driving + Cell Phones = Bad Call.

In an article published in the Miami Herald, Texting and driving a costly business risk, Ira Leesfield warned the corporate world of the dangers of having employees driving and using their cell phones. In 2007, an article published in the American Bar Association’s The Brief, Tort Trial & Insurance Practice Section, in which Ira Leesfield analyzes and discusses remedies and tactics for handling motor vehicle collision cases arising from cell phone use and distractions. This article can be downloaded here.
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Published on: May 8, 2012

Wrongful death caused by the negligence of a boat operator

By Leesfield & Partners

A boat operator has the duty to operate his or her vessel in a reasonable and safe manner and the duty to the public to exercise reasonable care in the use, operation, and control of the vessel.

The “reasonable care” standard is not singular to the State of Florida, and it generally applies, in one form or another, in all of the other states throughout the country. It will be a central issue in the civil case that will soon begin in Pennsylvania after these events took place on July 7, 2010 in the Delaware River:

https://www.youtube.com/watch?v=Lj91iqGKEPc

Leesfield & Partners has a long standing history in representing families of victims who lost their life or were catastrophically injured by the negligence of a boat operator. Recently, Ira Leesfield and Thomas Scolaro resolved a tragic case where a young child who was snorkeling with his family was killed when he was hit and ran over by a high horsepower motorboat operated by a teenager.

Despite the duty of reasonable care, the teenager was reckless in his operation of the boat and was the sole reason for causing this horrific incident. In the ensuing claim, the complaint alleged multiple violations of the law by the operator of the boat, including the following violations:

– Failure to operate the subject motorboat at a safe and reasonable speed;
– Failure to keep a safe and proper lookout while operating the subject motorboat;
– Recklessly operating the subject motorboat at an excess speed under the conditions;
– Failure to use caution in the operation of the subject motorboat when approaching snorkelers with a divers down flag;
– Failure to use caution in the operation of the subject motorboat when approaching snorkelers, divers, swimmers and other boaters;

Leesfield & Partners is one of the leading personal injury firms to handle boating and maritime accidents. Established over 35 years ago as a Key West and South Florida trial lawyers, this firm has tried many cases in Key West. Leesfield & Partners has obtained the largest verdict in Monroe County’s history.
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Published on: May 3, 2012

The injustice behind “Stand your ground” Law

By Leesfield & Partners

Written by Ira H. Leesfield – Article Published in the Daily Business Review

Florida’s “STAND YOUR GROUND” law not only distorts criminal justice for the victims of this special interest statute, it essentially eliminates civil liability for acts of aggression which would otherwise be compensable in the civil justice system. With the unnecessary death of Trayvon Martin last month in Sanford, the State of Florida is once again at the forefront of national and world attention. This time, it is not ‘hanging chads” which have made Florida the most curious state in the country. Now it is the “kill at will and with impunity” law that has erupted in international skepticism.

The law, Florida Statute Section 776.012, allows individuals to use deadly force if they reasonably believe it is necessary to prevent death or great bodily harm. It embraces a subjective standard, often with no witness or victim testimony. Such force was once only permitted inside one’s home (“castle”). But Florida’s legislature, lobbied relentlessly by the National Rifle Association and other “law and order” groups, in 2005, changed the law. Now, individuals no longer have a duty to retreat from danger but instead have a license to kill when they feel threatened with serious injury.

There is no question that the law has created unintended consequences over the years as perpetrators have been encouraged to escalate dangerous confrontations and take the law into their own hands. According to the Florida Department of Law Enforcement, the number of “justifiable homicides” in Florida has nearly tripled since the law passed. The Trayvon Martin case is one in a long line of cases where the “Stand Your Ground” defense could immunize a suspect for a highly questionable homicide.

The media frenzy surrounding “Stand Your Ground” has focused on criminal prosecution. But the law has a substantial and detrimental impact on civil claims for wrongful death and personal injury as well. One only need to recall the O. J. Simpson criminal acquittal followed by the guilty verdict in the civil case. Generally, an action for civil damages does not depend on the defendant being convicted in criminal court because civil cases have a different burden of proof. However, under “Stand Your Ground,” there can be both criminal and civil immunity, and therefore, insult is added to injury with no accountability for civil damages. What does this mean for the families of Trayvon Martin and others who were gunned down under unwitnessed suspicious circumstances? Must the “Stand Your Ground” defense fail in criminal court before a civil action may be pursued? Does the finding of immunity in criminal court bind the civil court?

Florida law complicates the issue, and there are currently no reported court opinions applying civil immunity in “Stand Your Ground” cases. However, civil court judges may be implored to apply a criminal court’s finding of immunity.

In 2010, the Florida Supreme Court held that in criminal cases, a judge, not a jury, should determine whether the defendant’s conduct was justified under “Stand Your Ground,” and the defendant has the burden of proving his entitlement to immunity by a preponderance of the evidence. In doing so, the Supreme Court removed perhaps the most crucial factual inquiry from the civil jury: whether the defendant’s conduct was “reasonable.” If the criminal judge finds that the defendant is immune from prosecution at an evidentiary hearing, the civil judge in a subsequent case for damages might feel compelled to consider the immunity issue previously adjudicated closing the door on the civil case. Unfortunately, the criminal judge who made the initial finding of immunity might not have known that he was also preventing a civil remedy for the surviving family in a subsequent wrongful death action. Even worse, §776.032, Fla. Stat., includes harsh provisions requiring the civil plaintiff to pay attorneys fees and costs incurred by a defendant who is found to be immune. This deters injured parties from even testing the legal theory.
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Published on: April 10, 2012

Rivera May Have Been Intoxicated in Wrongful Death Accident of Alanna Demella

By Leesfield & Partners

On March 18, 2012, Alanna Demella was tragically killed at the Riverside Hotel when a car driven by Rosa Maria Rivera crashed into the hotel’s pool cabana built only a few feet away from the roadway.

We previously reported on this terrible accident here: Resort Death of Pregnant Woman Challenges Leesfield & Partners

The Police investigation is still ongoing and, to date, very little information has been released to the public. In the last 72 hours however, we have learned that the Police is looking into Rivera’s potential driving under the influence at the time of the accident. Rivera admitted to the investigators that before the accident, she was with her husband at Mango’s Restaurant, less than two blocks away from where the accident occurred. She also admitted ordering appetizers and a alcoholic beverage. it is still unclear whether Rivera did drink her Martini.

What the investigation has revealed so far is that Rivera was in an angry state when she left the restaurant. Indeed, she told Police Officers that she left the restaurant because she had an argument with her husband. She claimed not having drunk the alcoholic beverage before sitting behind the wheel.

Witnesses to the accident did confirm that the car was going at a high rate of speed and Rivera must have lost control of her car as the only explanation why she drove her car straight into the cabana and why she failed to stay in her lane and make a light turn.

Regardless of whether Rivera was intoxicated at the time, there is no question that she was negligent for causing this accident and for taking the lives of Alanna Demella and her unborn child.

In our prior article (link above), we discussed the possibilities of Riverside Hotel’s negligence in this case. The cabana, as constructed, could have been too close to the roadway and may have been built in violation of rules imposed by the Florida Building Code.

Last week, a witness came forward and advised that there could be another potential defendant who contributed to this crash. From Mango’s restaurant to the scene of the accident, Rivera drove through the intersection of SE 4th Street and SE 8th Avenue. Said intersection did not have any traffic controlling devices such as a 3-way stop sign. In fact, vehicles traveling eastbound or westbound on SE 4th street did not have to stop at all while crossing that intersection.

Only months prior, that intersection was equipped with two additional stop signs (eastbound & westbound) but for some unknown reason, the traffic signs were removed. On the photo (right) you can still see the darker shade of paint covering the “stop lane”. The reasons for the removal of the stop sign is purely speculative at this stage. However, from inspecting the scene, it is very understandable why a stop sign was there in the first place.

Vehicles traveling westbound on SE 4th Street do not have to slow down before the light right-hand turn at the Riverside Hotel. The danger created by the absence of traffic control devices, such as a stop sign, is compounded by the peculiar absence of any signs alerting drivers that the roadway turns to the right. In fact, there are no markings on the pavement, and there are no traffic signs. A thorough investigation would help to show whether such lack of traffic signs and signage on the pavement of the roadway played a role in Rivera’s failure to make the turn and her car crashing into the hotel’s pool cabana.
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Published on: March 26, 2012

Fontainebleau hotel security questioned after two sexual assaults in four days

By Leesfield & Partners

Miami Beach Police Department are currently investigating two cases of sexual assaults that occurred last week at the Fountainebleau. As crucial a priority security in hotels, motels and resorts in Florida should be, our negligent security lawyers and inadequate security attorneys’ experience indicates security in hotels is severely lacking and more often that not contributes to guests becoming victims to sexual assaults.

Over the last four days, two guests staying at the Fountainebleau were sexually abused and assaulted. The first victim, a 23 year-old woman, returned to her hotel room and fell asleep on her bed when she was awaken by a naked man who was laying on top of her. The woman fought the man off and screamed for help. The assailant took flight and the victim ran to her sister’s guest room next door and called for help.

Investigators of the Miami Beach Police Department reviewed the surveillance camera footage and had sufficient evidence to arrest the alleged assailant, Rafael Munguia, 26, who was also staying at the hotel at the time. The surveillance footage showed Munguia leave the victim’s hotel room naked and run to his own hotel room. On the evening of the assault, the Police arrested Munguia on charges of rape, and he confessed to raping the young woman less than 24 hours later.

The second assault occurred by the pool area of the Fountainebleau. At around 2am, the victim’s boyfriend left the victim by herself for less than a half hour. When he returned, he saw a man on top of his girlfriend. The subject had his pants down and was physically grinding on the woman in a sexual manner. Two hotel employees witnessed the male subject run off the hotel’s property wearing nothing but a pair of underwear and carrying clothes in his hands.
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