This past Thursday, there was a tragic accident that occurred right in the heart of Destin. A Niceville man was heading north on Danny Wuerffel Way around 8 p.m. on a 1985 Harley-Davidson when a 2007 Expedition, driven by a man from Arkansas turned left in front of him. The significance of the impact killed the driver, and his 17-year-old passenger was reported to be in serious condition at Fort Walton Beach Medical Center. Unfortunately, the Niceville man was not wearing a helmet. The Expedition sustained $6,000 worth of damage in the crash, according to the FHP media release, and the Harley-Davidson sustained $10,000 in damages. FHP is investigating the crash.
Saturday afternoon, a tragic accident occurred on Highway 231. According to FHP, two 17-year-old males were on the side of Highway 231 changing a tire Saturday afternoon. Subsequently, they pulled back onto the road, allegedly not looking to see if there were any oncoming vehicles and hit a motorcycle which had two people on it. Both people were thrown from the motorcycle. FHP reports that the passenger on the motorcycle died and the driver of the motorcycle is in critical condition at Bay Medical Center. Both people on the motorcycle were wearing helmets.
Are Medicare benefits a collateral source that a jury should consider when determining future damages? The Florida Supreme Court said NO in Joerg v. State Farm. John Joerg, Jr., etc. et. al v. State Farm Mutual Insurance Co. (October 15, 2015).
A Honda Civic with six people inside was headed east on Sunday afternoon when the vehicle crossed the center line for an unknown reason and skidded into the oncoming lanes, according to a crash report. A westbound pickup truck hit the car's passenger side, ejecting all six occupants, the crash report said. FHP say the 32-year-old female was a passenger in the Honda Civic. The driver's name is listed as "unknown" and FHP says that person died as a result of the accident. The driver's name will be released pending further investigation.The female driver was taken to Tallahassee Memorial Hospital in critical condition. She was the only one in the Civic who survived the accident. The other occupants, a 43 year old male and 4 children, ages 7, 6, 15 and 3 lost there lives in the accident. All of the Honda passengers were from Winder, Georgia.
We recently went to a farm for pumpkins, sunflowers and fall festivities. As we bounced up and down on the hayride, I started to think about the possible liabilities in "agritourism". I expect that inviting the public to your farm increases your liability and legal responsibilities. First, what is an agritourism activity? An "agritourism activity" is any agricultural related activity consistent with a bona fide farm or ranch or in a working forest which allows members of the general public, for recreational, entertainment, or educational purposes, to view or enjoy activities, including farming, ranching, historical, cultural, or harvest-your-own activities and attractions. An agritourism activity does not include the construction of new or additional structures or facilities intended primarily to house, shelter, transport, or otherwise accommodate members of the general public. An activity is an agritourism activity regardless of whether the participant paid to participate in the activity. In 2013, Florida passed a law limiting the legal liability of landowners, agritourism operators, and employees for the inherent risks associated with the activity. This protection is afforded to those who post a notice of the risks. What is considered an inherent risk? Inherent risks of agritourism activity means those dangers or conditions that are an integral part of an agritourism activity including certain hazards, such as surface and subsurface conditions; natural conditions of land, vegetation, and waters; the behavior of wild or domestic animals; and the ordinary dangers of structures or equipment ordinarily used in farming and ranching operations. The term also includes the potential of a participant to act in a negligent manner that may contribute to the injury of the participant or others, including failing to follow the instructions given by the agritourism operator or failing to exercise reasonable caution while engaging in the agritourism activity.
In Progressive American Insurance Company v. Grossi, 164 So. 3d 790 (Fla 5th DCA 2015) John Grossi was the named insured of an automobile insurance policy. His wife, Judy, was also insured by and through the Progressive insurance policy. After an automobile accident, Progressive denied John's claim for Uninsured/Under-Insured motorist benefits ("UM benefits"). Progressive established that Judy had changed the policy by making a modification (rejecting UM benefits). At the trial court, a summary judgment was entered in favor of John and Judy Grossi; Progressive appealed. The question on appeal was whether Judy Grossi had authority to reject UM coverage as her husband's actual or apparent agent. John claimed that Judy did not have actual or apparent authority to decline the valuable UM coverage. John argued that only he (the named insured) had the authority to reject UM coverage. Progressive disagreed and asserted that the wife was acting within the actual or apparent authority of her husband and that her rejection was of UM coverage was valid. Florida's Fifth District Court of Appeal held that the named insured could reject uninsured motorist coverage through an agent. Furthermore, the court found that there was a plethora of evidence to support the insurer's position, including but not limited to Judy's numerous modifications of the policy in the past. Thus, the court reversed the trial court's order granting summary judgment and remanded the case to the trial court for determination of disputed issues of material fact.
The Northwest Florida Daily News reports on a horrible accident that occurred Wednesday morning. According to the FHP report, a 61 year-old male from Mary Esther was traveling north on Lewis Turner Boulevard when a FedEx truck turned left in front of him. The driver of the Fed Ex Truck "failed to yield the right of way", according to the report, and caused the accident by turning in front of the motorcycle. The impact was so significant that the motorcyclist was taken by helicopter to Sacred Heart Hospital in Pensacola following the 8:54 a.m. accident and was listed in critical condition Wednesday afternoon. The report also notes that the Mary Esther man was not wearing a helmet at the time of the collision. Charges are pending, according to the Highway Patrol news release. Our thoughts and prayers are with this man. We hope he has a quick recovery. Who has the right-of-way in Florida? Florida law says one must give up the right-of-way in an open intersection (one without traffic control signs or signals) if:
Using social media to connect with friends, relatives and co-workers is considered the norm. Without even thinking, people pick up their phone, open their Facebook account and "check in" at a restaurant or take a picture and post if they are out and about. Is this right or is this wrong? Most people assume the information they are sharing is only being shared with their "friends". Even with the highest privacy settings, those posts and pictures can be accessed by others that are not your friends. If you are in litigation, your information can be accessed and reviewed by "the other side." Consequently, what you thought was an innocent post could have the impact of damaging your case. For example, if you were in a car accident and claim you are in pain all the time, and then post a picture of you laying by the pool, the defense can take that picture and twist it to look like you are not in pain. Consequently, they have painted you to be a liar.
In Hankerson v. Wiley, 154 So. 3d 511 (Fla. 4th DCA 2015), the trial court allowed the plaintiff to see a surveillance video taken of him post-accident before his deposition. The defendant appealed the ruling. The Fourth District of Appeal agreed with the defendant, finding that the trial court abused its authority when it permitted a plaintiff to view a post-accident surveillance video before allowing a defendant to depose the plaintiff. The basis of the ruling was "because the benefit of the surveillance video may be irreparably lost if the plaintiff is permitted to view [it] before [the defendant] has an opportunity to question her, irreparable harm ...has been shown" So what does that mean to our clients? A defendant can use surveillance materials to question our client's claim in their deposition by allowing the defendant to depose the video-taped plaintiff after the video has been taken but before its contents are viewed by our client or by our office. To read the full opinion, click here: http://www.4dca.org/opinions/Jan%202015/01-07-15/4D14-4207.op.pdf
An interesting study recently came out in JAMA, The Journal of the American Medical Association. The study found more U.S. adults are getting hurt on bikes, especially middle-aged and older men. Urologist Benjamin Breyer, a researcher at the University of California, San Francisco and his colleagues became curious about cycling injuries after seeing many men coming in for surgery for such injuries as urethral damage after bike accidents. They looked at data collected by the U.S. Consumer Product Safety Commission from about 100 emergency rooms nationwide. Comparing 1998 and 1999 to 2012 and 2013, the last year of data available, they found: