Personal Injury

Published on: December 13, 2023

5 Must-Know Facts About Florida Personal Injury Law

Florida personal injury law explained by Fort Myers injury law firm

The first introduction many people have to Florida personal injury law is when they find themselves injured and in need of an attorney or being sued. Especially for an injured party emerging from the traumatic fog of that experience and still healing, it can feel overwhelming trying to follow along with the intricacies of the vocabulary, statutes, timelines, court procedures, etc.

Here, our Fort Myers personal injury lawyers offer up 6 facts about Florida personal injury law that we find are most relevant to the plaintiffs, who are our clients in these cases.

1. No-Fault Laws Don’t Absolve Anyone From Liability in a Car Accident.

There’s a common misconception that Florida’s no-fault car insurance law, F.S. 627.736, means that there is no finding of fault in car accident cases. This is false. What is true is that with the personal injury protection (PIP) coverage that is required of all registered vehicles in Florida, up to $10,000 in damages can be paid to the policyholder for things like medical bills and lost wages – and this is paid regardless of fault. However, as you likely already know, $10,000 is nowhere near enough to cover one’s losses in a crash, especially if the injuries are serious.

According to the National Safety Council, the average economic cost of a disabling car accident in 2021 is $155,000. That includes wage and productivity losses, medical expenses, property damage, and uninsured costs for employers. The average cost of a fatal crash is $1.8 million. Even in cases where injury is “possible but not evident,” the cost was $24,000 – 150% more than what PIP covers.

Florida’s no-fault law just means you need to go to your PIP insurer first. If your injuries meet the “serious injury threshold,” you can step outside of that system and take legal action against the at-fault drivers.

2. Florida Now has a 2-Year Statute of Limitations.

Published on: November 27, 2023

“Can the Defense in My Fort Myers Injury Lawsuit Spy on Me?”

by Leland Garvin

Fort Myers injury lawsuit spying by defense The uneasy feeling of being covertly watched is one that’s inspired more than a few catchy songs, but you should know it’s a possibility if you’re the plaintiff in a Fort Myers personal injury lawsuit.

Whether we’re talking about a matter of medical malpractice, a car accident injury, or a dangerous product case, there’s nothing in Florida law that will technically block the defendant from conducting some type of surveillance on you. In fact, you should probably expect it. In personal injury cases, the goal of “spying” is to rebut damage claims. Florida courts have generally held that because of the public interest in exposing fraudulent personal injury claims, plaintiffs can anticipate that a “reasonable” investigation is likely to include independent verification of their injuries.

But that doesn’t mean your privacy goes out the window. By working with a Fort Myers injury lawyer, you’ll get a much better sense of what these investigators are likely to look for and ways you can shield your privacy. We will help ensure that your rights are protected, and injury case defendants won’t get away with playing dirty.

What Are the Surveillance Rules in a Florida Injury Lawsuit?

Fairly common surveillance tactics in Florida injury lawsuits:

Monitoring your social media pages to see what sort of activities you’re up to. They may scour the posts and pictures for clues about not only your physical capabilities, but your mental/emotional state – which can be a significant component of damages in a Fort Myers injury lawsuit.
They might have an investigator post up to watch/record you as you leave your home, enter your place of employment, or carry on with daily activities.
They might request surveillance footage of local businesses or government agencies that might show you moving throughout a typical day – grocery shopping and lifting bags, walking through the park with a backpack on, unloading items from your vehicle at a local print shop, etc.

However, this “spying” is not without limitation. Continue reading

Published on: October 9, 2023

5 Fast Ways to Sabotage Your Fort Myers Personal Injury Claim

by Leland Garvin

Fort Myers injury claim lawyer As longtime Fort Myers personal injury lawyers, we recognize that most claimants in these cases are in uncharted waters. It’s not every day (thankfully) that a person is seriously injured in something like a car accident, slip-and-fall, or criminal attack on another’s property. And it’s not unheard of when these things happen for the person to try and file a claim for damages on their own. There’s no law that says you must hire a personal injury attorney for these cases. But doing so is like traversing an unfamiliar path without a guide.

The injury claims process is foreign to so many people, and thus opens the door for inadvertent mistakes that can sabotage their chances of full and fair financial recovery for injuries.

Some of the most common mistakes we’ve seen torpedo Florida injury claims:

Published on: September 20, 2023

Recalled Bicycle Helmets Increase Florida Bicycle Head Injury Risks

by Leland Garvin

Florida bicycle head injury risk defective bike helmet Many serious and recreational cyclists know they can reduce their risk of a Florida bicycle head injury by 60%-90% just by wearing a bicycle helmet. But what if the helmet you’re wearing is defective and provides inadequate protection?

Bicycling has never been more popular in Florida than it is now. With its flat terrain, year-round sunshine, and an abundance of nature trails, beaches, and scenic roads to ride, Florida has residents and tourists alike increasingly partaking. But the risk of Florida bicycle head injury is higher than you think – and defective bicycle helmets certainly don’t help.

In the first seven months of 2023, the U.S. Consumer Product Safety Commission has announced at least eight bicycle helmet recalls. These include:

Giro Merit Bicycle Helmet. Does not meet CPSC federal safety standards for bicycle helmets, and would fail to protect in the event of a crash, posing a heightened risk of head injury.
Xinerter Teal Adult Bicycle Helmet. Sold exclusively on Amazon from 2020 to 2023, the helmets don’t comply with positional stability and certification requirements of the mandatory federal safety standard for bike helmets, and would fail to protect riders from head injury in the event of a crash. The CPSC has warned consumers to immediately stop using them, cut the straps, and dispose of them so no one else can use them either.
SQM Bicycle Helmet. Sold on Amazon from 2022 to 2023, the single-sized helmet doesn’t comply with positional stability and certification requirements of federal safety standards. It would fail to protect the head in a bicycle accident or car accident.
Ventura Adult Bike Helmets. Roughly 1,750 of these helmets have been sold in the U.S., but they don’t provide adequate protection against Florida bicycle head injury risk.
Hurtle Multi-Purpose Children’s Helmet. About 1,800 of these bicycle helmets for kids were sold – despite failing to meet federal safety standards to ensure protection against brain injuries in the event of a crash.
Lelinta Multi-Purpose Kids Helmets. These kids’ bicycle helmets, manufactured by Lucky Global and sold exclusively at Walmart.com, don’t comply with federal safety standards and won’t adequately protect a child from the possibility of a serious head injury in the event of a Cape Coral bicycle accident.
TureClose Bicycle Helmets. These bike helmets don’t comply with federal safety requirements for positional stability, retention system, impact attenuation, or labeling requirements. Although the Chinese seller has refused to issue a recall, the CPSC is continuing to pursue a recall because if a rider crashes, they will not be adequately protected from a head injury.
Multi-Purpose Kids Bike Helmets, size medium. Sold on Amazon by Ouwoer Direct, these kids’ helmets don’t meet the standards for positional stability and impact attenuation required to ensure prevention of a child head injury.

What Legal Options Do I Have if a Defective Helmet Causes a Florida Bicycle Head Injury?

Published on: August 15, 2023

Who is Responsible for Fort Myers Teen Car Accidents?

by Leland Garvin

For a teenager, that first set of car keys feels like freedom – at last! Parents, of course, usually have a different perspective. There’s often a great deal of apprehension around those first few driving years. Unfortunately, those concerns are well-founded, as the risk of Fort Myers teen car accidents is especially high for new drivers.

According to the U.S. Centers for Disease Control and Prevention, car crashes are a leading cause of death for teens. In a single recent year, 3,058 teens ages 13 to 19 were killed in car accidents and another 227,000 were injured. Not all of those involved teen drivers of course, but the risk of fatal Fort Myers teen car accidents is three times higher for those 16 to 19 than in any other driving age group (per miles driven). Drivers aged 16 and 17 were at higher risk than those 18 and 19.

The good news is that since the mid-1990s and early 2000s, more states started adopting graduated licensing systems for young motorists. The purpose is to phase in driving privileges, rather than simply hand over the keys and hope for the best.

In Florida, graduated driver licensing laws outline limits and restrictions for drivers 15 to 17. For instance, teens with a learner’s permit (which they hold for at least 12 months or until they turn 18, whichever comes first) are only permitted to operate a car during daylight hours for the first three months. They’re restricted from driving after 10 p.m. They must always be accompanied by a licensed driver over the age of 21, and they need at least 50 hours of supervised driving – including 10 nighttime hours. Once they earn their driver’s license, 16-year-olds aren’t permitted to drive between 11 p.m. and 6 a.m., and must always be accompanied by an over-21 licensed driver – unless they’re driving to or from work. Once they turn 17, they are given a bit more freedom with nighttime driving, but still can’t be on the road between 1 a.m. and 5 a.m. They also must be accompanied by an over-21 licensed driver unless they’re driving to and from work.

So, Who Pays For Fort Myers Teen Car Accidents?

Published on: August 4, 2023

Fort Myers Crash Lawyer Tips: What to Do If Your Car Catches Fire

by Leland Garvin

Car fires aren’t anywhere near as common as they used to be a few decades ago. However, as a Fort Myers crash lawyer, I’ve seen more than a few lead to serious injuries.

Thousands of vehicles have caught fire over the last decade – including at least a half a dozen electric vehicles that went up in flames in Southwest Florida following Hurricane Ian-related flooding. (Similar issues were also reported with golf carts and scooters post-storm – especially dangerous because unlike car fires caused by engine combustion, those involving compromised batteries can keep reigniting.)

Are Florida Vehicle Fires Truly That Big of a Problem?

Overall occurrences of vehicle fires have dropped by 60 percent since the 1980s, according to the National Fire Protection Association (NFPA). But whether the car is powered by gasoline, lithium-ion batteries, hybrid powertrains, or electricity – car fires are always a possibility after a crash. In a single recent year, the NFPA estimates there were more than 212,000 vehicle fires in the U.S., resulting in 1,500 injuries, 560 deaths, and nearly $2 billion in property damage. It breaks down to about 400 vehicle fires daily. Vehicle fires resulted in 4.5 times the number of deaths as non-residential structure fires and 1.6 times the number of apartment fire deaths. Fires involving vehicles account for 16 percent of the 1.3 million fires that get reported to fire departments annually, as well as 15 percent of fire-related deaths and 10 percent of fire-related injuries.

The vast majority of these are highway vehicle fires, the most common causes are:

Mechanical failures & malfunctions
Electrical failures & malfunctions
Misuse of certain products or materials, such as spilling caustic liquids too close to the car

Older vehicles are especially prone to issues with flammability. When larger trucks are involved in a crash-related fire, the potential injury or death rate soars.

In some cases, vehicle manufacturers may be responsible for vehicle fires. For example, more than 7 million Kia and Hyundai vehicles have been recalled for vehicle fire risk, with more than 3,100 such fires (and 103 deaths) reported since 2010, according to the National Highway Traffic Safety Administration (NHTSA). It’s thought that perhaps these fires are related to the type of engine used by both car makers (they use many of the same parts suppliers), but it’s also possible faulty brake systems, wiring, and battery issues may be to blame. Where manufacturers haven’t been able to fix the fire risk right away, they’ve urged drivers to park the vehicles both outside and away from structures to minimize the odds of property damage if the vehicles do catch fire.

What Should I Do if My Car Catches Fire?

Published on: July 18, 2023

Legal Liability for Florida Swimming Pool Accidents

by Leland Garvin

Fort Myers Florida swimming pool accidents Here in South Florida, swimming pools are a way of life. Unfortunately, they can also be the cause of death and serious injury. Florida swimming pool accidents result in hundreds of drownings each year – many of them children.

While pools can be a ton of fun, understanding the inherent dangers can go a long way toward keeping pool-goers alert, particularly when kids or other vulnerable populations are in close proximity.

Residential pools – of which there are well over 1.1 million in Florida – are the site of 60 percent of all drownings in the Sunshine State. Still, resorts, water parks, hotels, apartment complexes, and condo associations are common sites as well. Individuals and entities can be held legally liable for drownings or other injuries if there is evidence they failed to provide proper maintenance, signage, security/fencing, or supervision.

Kids under 5 are at the highest risk of drowning deaths. It doesn’t take more than a minute or two. The vast majority of young kids who drown in Florida are out of sight for no more than 5 minutes – and 70 percent of those weren’t expected to be anywhere near a pool at the time it happened.

In addition to drowning, other types of Florida swimming pool accidents include: Continue reading

Published on: June 13, 2023

“Can I Still Win a Florida Injury Lawsuit if I Signed a Waiver?”

by Leland Garvin

Florida injury lawsuit waiver of liability Florida is a vacation destination, and many find opportunities here to engage in activities for which businesses require you to sign a waiver, releasing them from liability if you get hurt. Such excursions include things like parasailing, boating, go-kart racing, trampoline park jumping, golf cart driving, and Jet Ski riding. But while waivers and releases are generally enforceable in Florida, your hope of winning a Florida injury lawsuit may not be entirely lost. If you or a loved one is seriously injured in an activity for which you signed a waiver, it’s important to avoid any presumption that you don’t have a case until you’ve had a chance to talk to a skilled personal injury lawyer.

The enforceability of a waiver often comes down to the precise language it contains compared to the exact details of what happened to cause your injuries.

A prime example of this was the 2014 non-precedential opinion of Florida’s 5th District Court of Appeal in Gillette v. All Pro Sports, LLC. Here, a woman was injured in a go-kart accident at a facility operated by the defendant. The injured woman alleged an employee of the facility increased the speed of the go-karts during the race, resulting in her loss of control of the vehicle and subsequent crash into a railing that resulted in injuries. She sued for her injuries under the legal concept of negligence.

In its defense, the facility cited a waiver of liability that the woman had signed prior to getting on the go-kart. The trial court granted summary judgment favoring the defendant. The appellate court reversed meaning that she was allowed to sue and have her case move forward.

Firstly, any clause of a contract that aims to deny an injured party the right to recover damages from the party that negligently caused the injury is to be strictly construed against the party seeking to avoid liability. Secondly, if such clauses are to be enforceable, they must be blatantly clear and understandable so that any ordinary person would know exactly the rights they’re foregoing by signing.

Here, the waiver indicated the user would: Continue reading

Published on: May 11, 2023

How a Florida Hospital Lien May Impact Your Fort Myers Personal Injury Lawsuit

by Leland Garvin

Medical bills are one of the central claims filed in virtually any Fort Myers personal injury lawsuit. But if you don’t have health insurance (or enough health insurance) while your personal injury claim is pending, you could well find yourself with something called a hospital lien.

As our Southwest Florida personal injury lawyers can explain, a hospital lien – sometimes called a medical lien – is basically when a healthcare provider is granted payment rights for services rendered to a patient with a pending personal injury case. This seems fair enough: You get treatment at the hospital after a car accident, file a personal injury lawsuit against the at-fault driver, and providers are ultimately paid from the amount collected in that case. (You likely even signed discharge paperwork granting them permission to send in a claim against any court-awarded costs to pay medical debts related to your treatment.)

Where it can get a bit dicey is in determinations about how much is “reasonable.” Healthcare providers may have one idea about what’s “reasonable,” and the auto insurer(s) involved may have quite another. It’s a major issue because, in the Sunshine State, hospital liens are often given priority over any and all other recoverable damages – including lost wages, pain, and suffering, etc. That means they may argue that they are first in line when it comes to getting paid.

Who can you trust to advocate for you during these negotiations? Your Fort Myers personal injury lawyer’s at Garvin Injury Law. Not only do we understand what is considered reasonable for services rendered, we know what insurers are likely to agree on and whether the injured party may face challenges in actually collecting that sum. We’re also skilled in negotiating with hospitals and other healthcare providers on this front.

Also worth noting: Florida does it a bit differently than other states. While most other places have a single hospital lien statute, Florida allows each county to enact its own hospital lien statutes. (The state used to have a single health care lien law, but it was deemed unconstitutional in the 2012 Florida Supreme Court ruling in Shands Teaching Hosp. & Clinics, Inc. v. Mercury Ins. Co. of Fla.) What this ultimately means is there can be a big difference between when you might expect in Monroe County or Collier County versus what you might expect in Lee County or Sarasota County. Some counties don’t allow medical liens at all, while some do require they be filed in short order. Continue reading

Published on: April 28, 2023

Experienced Naples Car Accident Lawyer Can Help Properly Address Preexisting Conditions in Crash Cases

by Leland Garvin

Yes, a past injury or illness can absolutely impact a Florida personal injury claim. As our Naples car accident lawyer can explain, a preexisting condition complicates the claims process because the burden is on the plaintiff to prove the injury at issue was either caused or aggravated by the negligent act.

For instance, if you’ve been seeing a chiropractor for years for back pain – and then are in a crash that you claim resulted in back injuries – it’s up to you to prove that your injuries are new or that old injury were exacerbated by the crash.

To do all this effectively requires that you’re upfront with your Naples car accident lawyer about your pre-existing conditions. It is also important that you are upfront with your medical providers about your old injuries and are able to distinguish and describe the new injuries or at a minimum explain that they have been made worse. Your attorney is then responsible to be sure the aggravation of a pre-existing condition is properly pleaded and supported in the special damages portion of the lawsuit. Special damages for the aggravation of a preexisting condition must be expressly stated in the claim and supported by the evidence. It’s not assumed.

We saw this play out in the recent case of State Farm v. Davis, decided by a panel of judges for Florida’s 5th District Court of Appeal. In this case, insurance company State Farm appealed a $500,000 verdict, which included compensation for future medical expenses and future non-economic damages, including for aggravation of a preexisting condition.

The case stemmed from a 2016 Florida car accident between the plaintiff and another driver, an uninsured/underinsured motorist accused of negligence. As such, the plaintiff filed a claim for damages with her own UM/UIM car insurance company. The insurer conceded the other driver was at-fault, but contested the causation, nature, extent, and consequences of her injuries. Basically, the insurance company didn’t believe her injuries (or not all of them) resulted from the crash or as serious as she claimed. During the discovery process, it was revealed plaintiff had been receiving chiropractic care for pain and limited movement in her neck and lower back for 14 years prior to the crash. In the previous 6 years before the car accident, the plaintiff had seen a physician nearly 50 times for neck and lower back pain – one of those just three days before the crash. The doctor who treated her would later testify that the injuries he’d been treating her for weren’t the same as the injuries she’d suffered in the crash. An orthopedic surgeon she began seeing after the crash testified that two herniated discs and joint/neck pain were a result of the crash – for which she’d need future surgeries. However, no medical testimony or other evidence was presented by the plaintiff to indicate that the car accident resulted in an aggravation of her preexisting injuries or conditions.

A Naples car accident lawyer can explain that people injured in crashes might or might not have preexisting conditions, and those might or might not be aggravated in the crash. But even if the same general part of the body that has a preexisting condition is injured in the crash, and even though this might naturally and proximately result in aggravation, it is not necessarily the case. This must be specifically alleged, pleaded, and supported. Continue reading