January 2009 Archives

January 31, 2009

Florida Workers Injured On Job May Be Entitled To More Than Work Comp

Florida workers injured on the job may be entitled to more damages than Worker's Compensation for the accident or injury. Whether Florida workers injured on the job can collect more compensation than the Worker's Compensation depends upon whether the accident that they were involved in was caused by a 'third party's negligence or fault.

A Florida worker injured on the job can collect for pain and suffering and a multitude of other damages if the injury was caused by a third party. In such a case, the victim can sue that third party for damages in excess of what worker's compensation will pay.

A Florida worker (or the worker's family, if the worker is killed), may be able to sue and to collect more than Worker's Compensation, if the worker is injured or killed as a result of:

1. a car or other vehicular accident where anybody BUT a co-worker is at fault.

2. the worker being injured on a jobsite by someone's negligence who is not a co-employee and not an employee of the contractor on the job (i.e., the worker is injured by the negligence of the employee of another subcontractor).

3. Trips or Slips and falls while working on a condition not caused by the employee's employer, or at a location not owned or maintained by the worker's employer.

4. a defectively manufactured piece of equipment or machinery (and which injury is not due to the employer's negligence).

5. what amounts to an intentional act of the employer or an act of the employer substantially certain to result in injury or death to the employee

6. situations where the injured employee is not actually on the clock and not actually in the course and scope of employment with the employer

7. a defectively maintained piece of equipment which is rented or leased by the employer and where the inadequate maintenance is not due to the employee's employer's negligence

8. the person being an independent contractor and not an actual employee

Every Florida worker's compensation accident should be looked at to see if there is any exception to the general rule that a worker injured on the job is entitled to collect only worker's compensation from the worker's employer. The general rule is very general, and many more exceptions exist. The above list is not intended to be all-inclusive, but is intended to demonstrate the most common exceptions where a worker injured on the job may be entitled to substantial additional compensation over and above any worker's compensation settlement.

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January 30, 2009

The South Florida Personal Injury Attorney-Client Relationship

Recently, a disturbing story involving a San Diego, California Public Defender and his disgruntled client splashed the headlines with an in-court, feces-flying fiasco.  The appointed defense attorney was apparently smeared with feces about his face and head by his client who had smuggled a bag of excrement into the courtroom.  After besmirching counsel, the defendant turned his wrath on the jury and flung the remaining fecal matter into their box.  The reason given for such an outrageous offense was the defendant's disappointment of not having his present counsel removed as his representative.

Although this incident occurred in a Californian criminal court, many lessons can be derived from it by the South Florida personal injury attorney.  Although inexcusable, it is an important reminder that personal injury attorneys need to protect and nourish the sacred attorney-client relationship.  Whether it is an automobile accident, a medical malpractice action, or any of the numerous other cases maintained by the personal injury attorney, it is important communicate effectively with your client and set their expectations from the initial consultation.

The Rules Regulating the Florida Bar focus heavily on the client-lawyer relationship.  These Rules not only provide excellent guidance for attorneys, but expressly convey the requisites by which all attorneys are to interact with their clients.  This includes promptly informing clients of decisions and circumstances that require the clients informed consent, reasonably consulting with the client about how the objectives of their case are to be accomplished, keeping the client informed about their case, and replying to the clients requests for information.  Although these mandates at first glance seem to be inherent in the ideal of professionalism, it is important that South Florida personal injury attorneys take the time to make sure they are providing this level of service to each client.

The attorney-client relationship is symbiotic, however, and requires the active participation of not only the lawyer, but also the client.  That is why it is important to explain to the personal injury client what will be expected from them throughout the course of their representation and any limitations of the attorney's assistance.  If the proper expectations are set from the very beginning of the relationship including what the client should expect throughout the representation, what will be required of them, how long the case is anticipated to last, and what services the attorney will not be providing, it will make the process much smoother.

With a focus on the mandates of the Rules Regulating the Florida Bar and active communication with--and participation from--the client, it will enable the South Florida attorney to act with the commitment and dedication necessary to pursue the matter with the zeal that all clients expect and deserve.

***DISCLAIMER: The content provided is not intended to be construed as legal advice.  If you have any questions or concerns, based on your factual circumstances, please contact Law Offices Cytryn & Velazquez, P.A. at 1-877-853-7466. 

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January 29, 2009

Insurance Company Bad Faith Actually Benefits Florida Accident Victims

Shortchanging the accident victim is something that is 'old hat' for insurance companies. Florida accident victims have always had to scratch and claw through the system to get the compensation for injuries that they deserve.

Often, Florida automobile accident victims find themselves on the 'short end of the stick', dealing with insurance company "bad faith". Being a victim of a car crash is not bad enough, but when that victim finds out that the insurance coverage of the at fault driver and owner is inadequate, and there is inadequate uninsured motorist coverage, that victim may think they've hit the 'end of the road'.

Well maybe, except that insurance company greed may create an exception and actually create what amounts to an unlimited amount of insurance coverage. Under Florida law, if an insurance carrier representing the person at fault fails to make a reasonable offer when that insurance carrier should have, and does not act in the best interest of the person the carrier insures, that may open the door to unlimited insurance coverage.

In other words, an insurance carrier has an obligation to act in good faith to its at fault insured. If it doesn't, it opens the door to an excess verdict, one that could take what was otherwise a $10,000.00 policy limits case, and essentially make it into a case of unlimited insurance coverage.

This Florida law, to some extent, helps keep the insurance carriers 'in check', requiring them to really and truly try to evaluate a case properly, and if there's a reasonable chance that their insured can get 'hit' with an excess verdict, then they have the obligation to pay the injured party the policy limits.

The same concept applies to a person who is struck by an uninsured motorist or 'underinsured motorist'. When put on notice pursuant to statute, and an adequate period of time expires without payment, one who has uninsured motorist coverage can also obtain an excess verdict against its own insurance carrier.

Our law firm has many examples of insurance bad faith. In one, a young man in his early 20's with serious injuries came to us seeking to have his friend, who was the at fault driver, pay him the $100,000.00 policy limits of his friend's policy. When the insurance carrier refused, and claimed there was no insurance coverage under the policy, the young man sued, and a verdict was collected by the young man in an amount in excess of $1.8 million.

In another case, the failure of the insurance company to offer the $100,000.00 policy limits to a catastrophically injured young woman has resulted in that company now offering two million dollars to settle, and that sum has been turned down as the family seeks full compensation for her injuries.

So, if an insurance carrier is delaying on paying a claim, or hasn't offered the policy limits of the policy when they should have done so, seek the services of a lawyer who handles those type of claims.

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January 26, 2009

Florida Car Accident Victims Seeing Large Insurers Tighten Pursestrings

People injured in

Florida automobile accidents are seeing smaller offers from some of the bigger insurance carriers these days. Personal injury settlement offers from certain insurance companies here in Florida are way down, whereas several other insurance carriers continue to be fair and reasonable in their settlement offers.

As insurance companies decrease their offers for permanent injuries and pain and suffering sustained by Florida residents, lawsuits for personal injuries as a necessary corollary will increase. The biggest culprits (lowest payers) are amongst the largest insurance carriers in the country, and include Allstate, Progressive, and GEICO. The "Good Hands" people do not usually come in with "Good Hands" when it comes to payouts. Progressive is notoriously bad on "soft tissue" "whiplash"

claims, and GEICO is potentially the worst.

While an insurance carrier who pays reasonably might, for example, in the typical "soft tissue" case offer $15,000.00 as a final settlement, these 'Big Three' may offer anywhere from two to six thousand on a similar claim.

This can force a lawyer's hand and require the lawyer to file a lawsuit in a case that should be settled out of court. Particularly in a case where a person has a herniated disc (also known as a ruptured disc, and sometimes referred to as a bulging disc), and other cases where victims of car crashes lose wages or incur significant medical bills, it becomes more important to make sure that such a person is fully compensated and protected. That decision may force the victim's hand and require the filing of a lawsuit to insure full compensation.

Results in lawsuits vary greatly, and there's no question that when both the victim and the insurance company go to trial, they are rolling the dice, however, juries usually do the right thing if the accident victim has

competent representation. Certainly, board certification in a particular field guarantees somewhat more than adequate representation.

So, the pendulum swings every few years with these insurance companies, from good and reasonable payouts, to inadequate settlement offers. We list here the

worst insurance companies in Florida with #1 being the worst payer:

1. United Automobile

2. GEICO

3. Progressive

4. Allstate

5. Mercury

Our own list of insurance carrier ratings, good, and bad, is also available for review.

So what to do if you're in an accident in Florida and you're negotiating the case on your own? First, consult a board certified civil trial lawyer to see if you're getting a fair offer. Second, if you've got one of these insurers as your insurance carrier, consider switching to one of the better paying insurance carriers.

And last and most important, do your best to

avoid the accident in the first place:
  • Drive cautiously, drive sober, and drive attentively.
  • Don't text and drive.
  • Don't talk on your cellphone and drive.
  • Watch for drivers at intersections--many drivers tend to try to beat oncoming traffic
  • If you see somebody is about to rear-end you, you may be able to prevent it from happening by blasting your horn and perhaps alerting them
  • Be alert at all times when driving a motor vehicle
  • If you feel tired, don't drive; if you must drive, pull over and take a short nap
  • Read everything you can about
safe driving and accident avoidence.

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January 25, 2009

Trampoline Accidents Causing More Injuries Especially Broken Bones

Trampoline accidents and injuries are on the increase. Homeowner's insurance may or may not cover the homeowner, depending upon whether there is an exclusion in the homeowner's policy.

Claims and lawsuits against homeowners are possible, but only if they are not excluded in the homeowner's insurance policy. These claims, especially involving children, would be based upon the adult homeowner's failure to warn, or failure to supervise.

There is also a possibility of a valid claim against on older child who is not the homeowner who is not following warnings and allows or causes a younger child to be injured.  So even if the supervising older child does not reside on the premises where a younger child is injured, there may be a negligence claim made against the older child (say at least a teenager) under the homeowner's policy where that teen lives (again, if there is no exclusion for trampolines in that teen's parent's homeowner's policy).

Manufacturers' instructions warn against the use of a trampoline by more than one user at the time. Claims against manufacturers are also possible, but are much more difficult to win because of the extensive warnings placed in the manufacturer's warning booklets. However, the warnings should also be placed right on the trampoline and visible to the reader so that the user is reminded of the dangers of things such as multiple users at one time. Unfortunately, some of the children who are injured from trampoline use aren't even able to read, and if if they are, children are likely to ignore warnings.

Children between the ages of 5 and 14 represent 70% of the victims, and according to the Consumer Product Safety Commission, there have actually been several deaths. EOrthopod points out that in 1971, the NCAA stopped allowing the trampoline as part of its competition, and that in 2006, the American Academy of Pediatrics recommended restricting and removing trampolines from schools, outdoor playgrounds and homes.

In 1998, almost `100,000 visits to emergency rooms in the United States were due to trampoline accidents, with the most common injuries broken bones.

Tips for use and safety are set forth in an article entitled Trampoline Injuries: Visits to Emergency Rooms are Jump'n.

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January 24, 2009

Florida Bicycles Accidents Injure More Children Than Any Other "TOY"

Any Florida bicyclist injured by the negligence of another person may bring a claim against that negligent person.

Under Florida law, a bicyclist is considered a 'pedestrian', and if the bicyclist is injured by a motor vehicle, the bicyclist can bring a claim against the negligent driver or owner of the motor vehicle. In addition, if the owner or driver of the vehicle that caused the accident is uninsured or underinsured, the victim may seek to collect under any resident relative's uninsured motorist coverage, or if they themselves own a motor vehicle, under the uninsured motorist coverage of their own automobile. In addition, they may collect personal injury protection coverage under either their own vehicle, a resident relative in their household, or from the at fault driver's vehicle, in that respective order (but not duplicative).

Bicycle accidents injure more children than any other toy. In fact, bicycle accidents bring about 500,000 people to emergency rooms in the United States every year, and more than half of them are children, according to the Consumer Products Safety Commision.

The ratio of deaths for non-helmeted drivers vs helmeted drivers is approximately 10 to 1 over the years, that is, an bicyclist without a helmet appears to have a ten prospect of dying as opposed to a helmeted driver. The correlation between the wearing of bicycle helmets and the reduced risk of a head injury among children is very substantial, as reflected by a study in BMJ.

Boys have a substantially higher rate of injuries and deaths than do girls.

Interestingly, a study showed that one in three fatalities in Maryland involved cyclists whose blood alcohol levels exceeded .08, a level where most states begin the presumption that the person is under the influence to the extent that their faculties were impaired.

An excellent article on bicycle safety and accident prevention is called Bicycle Safety.

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January 24, 2009

Uninsured Motorist Coverage For Florida Automobile Accidents More Important Than Ever

More automobile accidents are occuring in Florida involving drivers without uninsured motorist coverage, in large part, because of the downturn in the economy.

In Dade County, the number of uninsured motorist automobiles has been estimated to be as high as sixty-three percent, and although in Broward County, the number is not as high, it is higher than most of Florida, and has a higher percentage of uninsured motorists than most states in the U.S.

The Insurance Research Council recently reported that we can expect an increase in uninsured motorists by the year 2010 here in Florida, and that Florida had the fifth highest number of uninsured motorists in the U.S. 23%.

Why Is Uninsured Motorist Coverage Important?

Uninsured motorist coverage in Florida covers you and your household family members if you or they are involved in a vehicle collision with an uninsured motorist. The coverage can include payments for medical bills, lost wages, and intangible damages such as compensation for pain and suffering. In addition, it also covers you if you're involved in a collision and the other person does not have enough insurance coverage. Many people purchase bodily injury insurance coverage, which protects them to that extent if they are negligent in an accident, but little, and sometimes nothing, to protect themselves. This makes no sense.

We suggest that at minimum, everybody should have at least the same amount of uninsured motorist coverage as their bodily injury liability coverage. In addition, that uninsured motorist coverage can be "stacked" so that the amount of coverage can be increased to exceed what would otherwise be allowable by law by "stacking" the coverage on every vehicle. Finally, if you have a large enough amount of coverage, usually $100,000.00, on your home and your vehicles, then you can actually purchase an umbrella uninsured motorist policy usually offered by companies in increments of even up to $1 million or more.

The morale of the story: Make sure you and your loved ones are adequately covered in these times of economic stress. The last thing anyone needs is an uninsured motorist causing a severe accident, turning someone's life upside down, with little or no recourse.

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