Tuesday, October 20, 2015

Am I Entitled To Punitive Damages As The Result of Being The Victim of Drunk Driving?

Florida lawyer explains punitive damages for drunk driving victims
Suffering injury as the result of someone else’s negligence is always difficult to process. The fact that a tortfeasor’s carelessness can have such devastating impact on an injury victim often times creates feelings of helplessness, loss and resentment towards the wrongdoer. These feelings are generally compounded when the cause of your injury is not based solely on another driver’s inattentiveness, but also by his/her decision to consume alcohol or other mind altering substances prior to operating a motor vehicle. Victims of drunk driving can understandably harbor more feelings of anger towards the driver than those in a typical automobile collision case. Not only are a victim’s elevated feelings understandable from a human perspective, but treating drivers who cause collisions based on their intoxication differently is recognized from a legal standpoint as well.

Damages for Personal Injuries Suffered in Car Crash Cases

In the past, I’ve posted articles regarding the types of damages an injury victim may be compensated for after being involved in a car crash or similar incident. These damages are typically divided into two categories: economic and noneconomic damages. Economic damages are easily identifiable and may be calculated by utilizing hard and fast numbers and formulas. Economic damages include past and future medical expenses, past and future lost wages and other types of tangible losses. Noneconomic or “pain and suffering” damages are those intangible losses such as the loss for the capacity for the enjoyment of life, mental anguish, inconvenience and others.

Punitive Damages

A more rare form of damages are referred to as “punitive damages.” These damages, as the name implies, are meant to punish the Defendant for his/her conduct as well as deter others and society as a whole from engaging in similar conduct. In the context of automobile collision cases, punitive damages are frequently sought in instances where the defendant driver was under the influence of drugs and/or alcohol at the time of the collision. The Florida Legislature has allowed plaintiffs to assert claims for punitive damages under the Florida Rules of Civil Procedure and § 768.72, Florida Statutes. Florida law recognizes that punitive damages may be warranted when a defendant driver demonstrates reckless disregard for human life and the safety of others. This is distinguishable from simple negligence, where a defendant’s conduct is said to fall below the standard of care that a reasonably prudent person would utilize in like circumstances.

It is well settled in Florida that punitive damages are appropriate in cases where negligence is coupled with intoxication. 

Ingram v. Petitt, 340 So. 2d 922 (Fla. 1976) "[W]e affirmatively hold that the voluntary act of driving ''while intoxicated'' evinces, without more, a sufficiently reckless attitude for a jury to be asked to provide an award of punitive damages if it determines liability exists for compensatory damages."); See also, Zuckerman v. Robinson, 846 So. 2d 1257 (Fla. 4th DCA 2003) (Legislature has singled out DUI cases as uniquely qualified for punitive damages); Matalon v. Lee, 847 So. 2d 1077 (Fla. 4th DCA 2003); D'Amario v. Ford Motor Co., 806 So. 2d 424 (Fla. 2001).

Significantly, it was the Florida Legislature’s intent by enacting § 768.736, Florida Statutes, to not only lessen the Plaintiff’s burden of proof when asserting a claim for punitive damages in cases wherein there is an intoxicated Defendant, but to also remove the standard cap on punitive damages as is generally applied under § 768.73, Florida Statutes.

While in general, automobile insurance policies may not insure the tortfeasor driver for punitive damages, the insurer nevertheless has a duty to act in the best interest of their insured. Indeed, the insurer must exercise control over the claim process in good faith and with due regard for its policyholder by placing the policyholder’s interest firstWhen the insurer fails to satisfy its fiduciary duties to its policyholder, the insurer shall be held liable for any resulting damages including the resulting judgment against the policyholder in excess of the policyholder’s underlying limits Campbell vs. GEICO, 306 So.2d 525, 530 (Fla. 1975). Accordingly, insurance companies must be wary when handling a claim wherein the insured driver was intoxicated at the time of the crash and must mitigate the loss accordingly.

Contact Dolman Law Group

If you have been injured as the result of an intoxicated driver, contact the attorneys at Dolman Law Group to ensure your rights are being protected. As explained in this article, cases involving intoxication are inherently different from a typical motor vehicle collision case, as punitive damages—damages meant to punish the tortfeasor and which are above and beyond typical damages—may be warranted. For more information call 727-451-6900

Dolman Law Group
800 North Belcher Road
Clearwater, FL 33765
727-451-6900

Monday, September 28, 2015

Florida’s Snowbird Season & Accidents



If you live anywhere in the south, you know that during latter part of October, the roads get a little bit tighter because of the amount of cars driving from one destination to another. From the late fall into winter months, snowbirds make their mark in Florida by escaping the harsh conditions in the North. Whether it is a family looking to vacation at Disney World and/or Busch Gardens or an elderly couple who retires to South Florida for a few months, it’s inevitable to have packed roadways. Of course with more cars, there’s an even greater chance of getting into a car accident.

To put things in perspective, approximately 500,000 snowbirds visit Broward County in the winter months alone. Over in Zephyrhills, the population is around 15,000 people. During the same winter months, the population increases to 80,000 people [1]. Besides the obvious positive boost in the economy, the negative side to this population increase is that the potential for a car accident nearly triples. When thousands of older drivers are concentrated in specific areas such as our Clearwater area, the traffic flow and patterns change dramatically. Out of the different age groups that migrate south for the winter, the elderly population is the one that causes the most damage.

Some reasons why elderly drivers over the age of 70 are at a greater risk for causing a crash include:

Ø  Irresponsibly pulling out into traffic- many older drivers are in car accidents because they pull out in front of traffic without glancing to see if it is safe to do so. This may be because they have difficulty estimating distance.
Ø  Making unsafe maneuvers- elderly drivers may change lanes without looking for another motorist or they may change direction without using signals.
Ø  Failing to yield the right of way- older drivers sometimes fail to remember driving rules or don’t see the other motorist, pedestrian or bicyclist and fail to yield to them.
Ø  Problems with vision/disability- poor sight effects the elderly population, amongst many other issues and the effects spill over into their driving.
Ø  Decreased reflexes- senior citizens move slower, drive slower and have slower reflexes that might contribute to an auto accident.
Ø  Memory loss- dementia and other diseases that affect memory in the elderly condition them to forget where they are going or have trouble remembering things such as their sense of location.
Ø  Medical issues- an elderly driver is more likely to develop a medical problem, such as a stroke or heart attack, which can prevent them from driving safely.

Reports say the number of traffic accident fatalities has increased sharply in the first half of 2015; and that’s without including the upcoming winter months. During these first 6 months, a sharp increase was seen in the number of traffic accident fatalities nationwide. The data gathered by the National Safety Council shows that approximately 19,000 people were killed in traffic crashes through June. This trend suggests that traffic deaths many surpass 40,000 by the end of this year, exceeding 2007’s record total of 44,000 according to Deborah A.P. Hersman, president of the NSC [2]. Going off of those statistics alone, and remembering the growing number of snowbirds because of record breaking winters in the north, one can only assume the dangers ahead.

Dolman Law Group
Therefore, you need an experienced attorney who can defend you after a car accident. Unfortunately, with the holiday season, we see a spike in accidents because of crowded roadways and irresponsible drivers. The arrival of snowbirds can increase the likelihood of an accident. It’s always safe to proceed with precaution during these months as well as avoiding road rage, keeping track of speed, backing off of tailgating and buckling up. Even with these safety measures in place, if you or a loved one is involved in an auto accident due to the negligence of another driver, please feel free to call the Clearwater attorneys at Dolman Law Group who know how frustrating this time can be. Call (727) 451-6900 today.

Dolman Law Group
800 North Belcher Road
Clearwater, FL 33765
727-451-6900


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Monday, August 3, 2015

What Do I Need to Prove My Truck Accident Case?




Trucking accidents can result in some of the most devastating losses that we see as personal injury attorneys. Cases involving a collision with a commercial vehicle differ from your typical car accident case and needed to be handled accordingly. Trucking accidents require a thorough investigation, the use of experts, and collecting evidence regarding the driver that is more detailed in nature and scope as compared to a typical automobile crash case. The following are some key features necessary to successfully litigate your trucking accident case:

Experts

Ensuring the best possible result for your trucking accident case requires the use of experts. These experts may include:

Accident Reconstructionist
Typically an expert accident reconstructionist is utilized in a standard car accident case where liability is in dispute as well as a trucking accident case. An expert accident reconstructionist will render an opinion as to who was at fault for causing the collision. This type of expert will examine the vehicles involved, the scene of the crash, take measurements and analyze all relevant factors in forming his/her opinion. An expert accident reconstructionist can help recreate the scene for the benefit of the jury during trial to help explain how and why the crash occurred.

Trucking Safety Expert
A trucking safety expert may be used to render an opinion and testify as to what exact standards the truck driver breached when the collision occurred. Because trucking standards are heavily regulated and differ from ordinary rules of the road, this type of expert can help explain to the jury the breadth of training and rules a truck driver is required to meet in order to operate his/her commercial vehicle in a reasonably safe manner.

GPS and ECM Data Expert
A truck driver’s GPS and ECM (Electronic Control Module) data should be obtained and analyzed by an expert.

The ECM is responsible for controlling engine performance, fuel efficiency, transmissions and can troubleshoot mechanical problems. Essentially the ECM will monitor the operation of the vehicle and record relevant data. As such, the ECM becomes a treasure trove for relevant information related to whether there was any type of system failure that contributed to the crash and could have been prevented.

GPS data gathered after a crash occurs to determine how fast the truck was traveling at the time of the crash, the distance between the destination the truck left from and the stop to where the truck was heading, how long the trucker had been operating the vehicle without taking a break, and other relevant information that can be used in demonstrating the trucker failed to use reasonable care. An expert of this nature will be able to explain to the jury the applicable standards and where and how those standards were breached.

Vocational Rehabilitation/Life Care Planner
A vocational rehabilitation expert/life care planner is used in a personal injury case to document the needs that the plaintiff will have in the future. This includes the projected cost of future rehabilitative and medical care as well as an opinion as to what type of employment the injured claimant may obtain in the future. A vocational rehabilitation expert will perform a comprehensive evaluation of the injured party to assess both physical and mental strengths and what limitations the plaintiff’s injuries will have on his/her ability to obtain gainful employment in the future.

Evidence Related to the Truck Driver
Trucking accident cases differ from an ordinary car accident case in that the Defendant driver is a hired professional whose background becomes especially critical in litigating the case. Specifically, the driver’s qualification file, medical, personnel, and training file should all be requested in discovery. These types of records will aid in determining whether the driver had a poor driving history, a medical condition that renders the driver unfit to operate a motor vehicle, failed to complete the basic requisites of his/her training, or has been the subject of any disciplinary action in the past.

Further, the driver’s payroll records, hours of service or driving logs and inspection records should also be obtained. The truck driver should be subjected to both drug and alcohol testing following the collision and these results should be requested to determine whether the driver was at all impaired at the time of the crash. Lastly, as in any collision case, cell phone records must be obtained to see whether the driver was on the phone, texting, or engaging in any other type of cell phone activity prior to the crash. Such a finding may result in an assessment of punitive damages (damages meant to punish the offender and deter the driver and the public from engaging in similar conduct in the future).

Vehicle Evidence
The GPS and ECM data explained above must be preserved and downloaded for review. Maintenance records indicating when the commercial vehicle was last serviced and what services were rendered should be obtained to confirm that the vehicle was conforming to regulation. Inspection records both pre and post-crash should also be obtained for this purpose.

Call Dolman Law Group

Navigating a claim for personal injuries resulting from a commercial truck accident is complex. There is no substitute for a thorough investigation to obtain all pertinent evidence and hiring the experts necessary to successfully litigate the case. Dolman Law Group has the resources required to handle your truck accident case and will help guide you every step of the way. For more information call 727-451-6900.

Dolman Law Group
800 North Belcher Road
Clearwater, FL 33765
727-451-6900


Friday, July 24, 2015

Will Crash Avoidance Technology Reduce Truck Accidents?




Commercial truck accidents are a serious safety issue on the highways in Florida and across the United States. The National Highway Traffic Safety Administration (NHTSA) reports1 that, in 2013 alone, accidents involving large trucks led to the death of nearly 4,000 individuals and caused injured to approximately 95,000 more. Furthermore, the large majority of truck accident victims are not the truck drivers but are instead occupants of other motor vehicles, bicyclists, or pedestrians. In order to protect other motorists on the highway, many safety advocacy groups have been seeking new ways to improve commercial truck safety in the U.S.

New technology may increase safety of motorists
In recent months, advocacy groups Road Safe America, the Center for Auto Safety, and the Truck Safety Coalition have all gone before NHTSA and the U.S. Department of Transportation2 to request that the agency mandate that every new commercial vehicle be equipped with systems intended to prevent crashes before they occur. The technology is called the forward collision avoidance and mitigation braking (F-CAM) system.

The F-CAM is specifically meant to prevent a truck from colliding into the rear-end of a smaller passenger vehicle. The system includes both sensors and radars that can detect when a truck is drawing too near another car in front of the truck. A warning goes off to alert the driver that a forward collision is imminent, giving the driver the chance to brake. If the driver still fails to brake for some reason, a collision mitigation braking system will apply the truck's brakes on its own to avoid a crash or at least slow the truck down so that a crash is not as severe as it may have been.

Some trucks already have F-CAM systems in place, however, there is no federal mandate requiring the installation of this technology in all new trucks. In fact, estimates show that only about three percent o f commercial vehicles have such a system in place. However, research indicates that the current version of the F-CAM has the potential to prevent an estimated 2,500 crashes on an annual basis. Additionally, as companies develop more advanced and refined technology, more than 6,000 forward collisions may be avoided per year.

Override accidents can be fatal
Forward truck collisions can be especially dangerous as they often result in override accidents. An override accident occurs when the front end of a truck actually drives onto a smaller vehicle in front of it. These accidents can happen due to both the weight of the truck and the proportion of the clearance under the front of the truck to the back of a small car. As you can imagine, when an 80,000 pound truck drives onto the back of a car, devastating injuries may occur. Often, a truck may even go all the way through the rear window of a car into the back seat, where children are most often located in a vehicle.

Over the next couple of decades, the maximum tonnage of commercial trucks is expected to increase significantly. This means that override accidents can become even more dangerous and the need for F-CAM technology may become even greater to avoid serious injury. Until all trucks are required to have these systems, however, it is imperative that all commercial truck drivers avoid negligent behaviors that may lead to forward collisions. Such behaviors include distracted driving, tailgating, driving under the influence of drugs or alcohol, fatigued driving, among other. Any driver who engages in such behavior and causes serious or fatal injuries should be held fully liable for all losses suffered by accident victims.

Find out how our qualified Clearwater truck accident attorneys can help you
At the Dolman Law Group in Clearwater, Florida, our team of highly skilled truck accident lawyers are committed to helping injured victims receive full compensation from any negligent truck drivers or trucking companies. We have experience facing off against large trucking corporations and have the resources necessary to successfully pursue and prove your legal claims. Our consultations are always free and we can advise you of your legal rights and options. Call today at 727-451-6900 to learn how we can help you.

Dolman Law Group
800 North Belcher Road
Clearwater, FL 33756
727-451-6900


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Monday, July 13, 2015

A Further Victory for Victims of Medical Malpractice: Appellate Court Finds Statutory Cap on Personal Injury Claims Unconstitutional




Last year we posted an article outlining the significant impact the Florida Supreme Court’s decision in Estate of McCall v. United States, would have on plaintiffs in wrongful death medical malpractice cases. In McCall, the Court determined that the caps on noneconomic (often referred to as “pain and suffering”) awards in wrongful death cases imposed by section 766.118, Florida Statutes (2005), violated the equal protection clause of the Florida Constitution. 134 So. 3d. Now, in North Broward Hospital District d/b/a Broward General Medical Center, et. al v. Kalitan, the Fourth District Court of Appeal has found the caps in section 766.118 in personal injury cases to be similarly unconstitutional.

The Current Statutory Caps in Medical Malpractice Cases
Section 766.118, Florida Statutes, limits the amount of damages a claimant may be entitled to in a medical malpractice action. Specifically, the legislative cap limits damages to $500,000.00 per claimant or up to $1 million in certain circumstances. In McCall, the Court reviewed the constitutionality of Florida’s cap on noneconomic damages for medical malpractice wrongful death claims and concluded that the caps “irrationally impact[] circumstances which have multiple claimants/survivors differently and far less favorably than circumstances in which there is a single claimant/survivor.” Id. at 901. As the Court noted in McCall, “the greater the number of survivors and the more devastating their losses are, the less likely they are to be fully compensated for those losses.” Id. at 902. In analyzing the legislative scheme against the backdrop of the Equal Protection Clause, the Court ultimately held that the cap on wrongful death noneconomic damages “does not pass constitutional muster.” While this was a huge victory for those injured by the negligence of medical providers and the plaintiff’s bar as a whole, the McCall decision left open the question of whether the statutory cap in personal injury cases are also unconstitutional. In a case of first impression, the Fourth District Court of Appeal answered the question in the affirmative and correctly stated that “to conclude otherwise would be disingenuous.”

The Facts of Kalitan
In Kalitan, the plaintiff, Susan Kalitan, went to North Broward Hospital to undergo an outpatient surgery to treat her carpal tunnel syndrome. The procedure required her to be placed under general anesthesia. While attempting to incubate her, one of the tubes perforated Ms. Kalitan’s esophagus. As a result, she had to undergo emergency life-saving surgery and was placed in a drug-induced coma. Ms. Kalitan was also required to undergo additional surgeries and intensive physical therapy. Consequently, she suffered from serious mental disorders and constant pain throughout the upper half of her body. Accordingly, a medical malpractice lawsuit against the hospital and doctors who negligently administered the incubation tube was subsequently filed and eventually went to a jury trial. The jury ultimately awarded the plaintiff $4,718,011 in total damages—$2 million for past pain and suffering and $2 million for future pain and suffering. After the trial, the court limited the noneconomic damage award by the caps provided under section 766.118. The Plaintiff appealed.

The Court’s Analysis & Conclusion
The Fourth District Court of Appeal analyzed the McCall decision and reiterated that the Legislator’s intent on enacting the statutory caps was to address the so-called “medical malpractice crisis” in Florida. If, as the McCall Court stated, no such crisis currently exists, then neither does the “legitimate state objective” to which caps could “rationally and reasonably relate.” The court determined that the caps violated the equal protection clause because the caps allowed those injured claimants who suffered damages less than the caps to obtain full compensation for their injuries but left those victims who have suffered damages exceeding the caps left without full and just compensation.

The court further correctly found that it made no difference whether the caps applied to multiple claimants in a wrongful death medical malpractice action or to a single claimant in a personal injury malpractice case. As the court stated, “so long as the caps discriminate between classes of medical malpractice victims, as they do in the personal injury context (where the claimants with little noneconomic damages can be awarded all of their damages, in contrast to those claimants whose noneconomic damages are deemed to exceed the level to which the caps apply) they are rendered unconstitutional by McCall, notwithstanding the Legislature’s intentions.”

Impact

This decision correctly determined that the legislative caps imposed by section 766.118 were founded based on a legislative intent regarding an alleged medical malpractice crisis that is now baseless. The result further upholds the rights of those who suffer harm and endure life-altering injuries at the hands of negligent medical providers by allowing those individuals to finally obtain fair and just compensation. Until the Florida Supreme Court holds otherwise or a conflict among the lower courts exists, the Kalitan court’s decision is binding law. Negligent medical providers will no longer be allowed to shield themselves from bearing responsibility for the true extent of the damages they cause. For more information on medical malpractice and personal injury claims, contact the attorneys at Dolman Law Group, 727-451-6900.

Dolman Law Group
800 North Belcher Road
Clearwater, FL 33765
727-451-6900