Florida Personal Injury Lawyer Blog

Published on: May 30, 2023

What Florida Motorcyclists Need to Know About the State’s New Negligence Law

Florida motorcyclists accident lawyer I’m going to say something right off the bat that I know won’t win me brownie points with Florida motorcyclists: You should all start wearing motorcycle helmets.

Before you scroll away, hear me out. This is not me getting preachy about the risks. You already know them. And it’s not that Florida’s motorcycle helmet law has changed. You still don’t legally have to wear one (assuming over 21 and have sufficient insurance, in accordance with F.S. 316.211).

This is about a recent state law change that will significantly impact the amount of damages you can collect if you’re injured in a crash while you aren’t wearing protective headgear – even if the crash wasn’t your fault.

As a longtime Fort Myers motorcycle accident lawyer, I have always been proud to advocate for the people in Southwest Florida who have been harmed in the course of their everyday lives through little-to-no-fault of their own. This includes Florida motorcyclists who aren’t breaking any laws in exercising their right to forego a helmet. This new law won’t shake that commitment. It will, however, make the job much harder.

Florida’s new comparative negligence standard is going to affect basically everyone who is filing a personal injury action in Florida from here out, but motorcyclists especially need to take heed.

Changes in Florida’s Injury Law Standards

The new tort reform measure, HB837, was rushed through the state legislature on the faulty premise that frivolous lawsuits are driving up insurance premiums. Not only is this incorrect, but we’d be willing to wager high stakes those auto insurance rates won’t drop much if at all.

There are many concerning elements contained in the new law, but it’s the altered comparative negligence standard we’re presently focused on. Overnight, we went from following a standard of pure comparative negligence to one of modified comparative negligence with a 51 percent bar. Fort Myers motorcycle accident lawyer

Before we get into why that matters, let’s start with the fact that in many car accidents, motorcycle accidents, and bicycle accidents, more than one party is at-fault. Maybe you were speeding, but the other person entered your lane unsafely. In cases where there is more than one party at-fault, insurers and/or courts assign fault percentages. These can be used to determine how much the injured person is owed. For instance, if you’re assigned 20 percent fault and the other driver 80 percent and your total damages are $100,000, the other at-fault driver would be responsible to pay you $80,000.

Pure comparative fault, which is what we had before, allowed plaintiffs to be found up to 99 percent at-fault – and still collect the remaining 1 percent of damages from the other at-fault driver. (That’s not an ideal outcome for the plaintiff, of course, but it ensures everyone is accountable for their own actions.)

But now, we have a 51 percent bar on the plaintiff’s fault. What that means is if you’re more than 50 percent at-fault, you can’t collect any damages at all. The other driver could be 49 percent at-fault, and wouldn’t have to pay a thing.

What Does This Have to Do With Motorcycle Helmets?

Published on: May 16, 2023

Employer Liability for Fort Myers Car Accidents Involving Working Drivers

by Leland Garvin

Fort Myers car accidents attorney There are a number of situations where employers in Florida can be held legally responsible for the damage caused by negligent employees – even if the employer didn’t directly cause the damage. This is what is referred to in civil injury law under the concepts of “vicarious liability” and “respondeat superior”. Essentially, it’s an imputed liability for the actions of a subordinate third party, typically an employee or child. It usually comes down to the level of control the supervisory party has over the negligent party.

Vicarious liability comes up a fair amount in Fort Myers car accidents that involve working drivers. Usually, a company isn’t responsible for crashes that occur during a worker’s commute to-and-from work. However, if the crash occurred while the employee was acting in the course and scope of employment (i.e., making a delivery, running a work errand, going from one job site to the other, etc.), the employer can be held vicariously liable. (Specifically with respect to employers, there is a legal doctrine known as “respondeat superior,” which is Latin for, “let the master answer.”)

Also in Florida, vehicle owners can be held vicariously liable without any need to prove direct negligence. That’s because long-standing legal precedent in Florida considers motor vehicles to be inherently dangerous instrumentalities. If a vehicle owner entrusts someone else to operate a vehicle they own, the owner can be held vicariously liable for the negligent operation of it that leads to someone else getting hurt. So, in Fort Myers car accidents that involve someone using a company vehicle – even if they weren’t technically on the job – the employer might be held legally responsible as the vehicle owner.

In a recent crash case before Florida’s 4th District Court of Appeals, the question was whether claims of direct negligence against two supervisors of an allegedly negligent employee driver were valid. According to the written opinion in Jones v. Vasilias et al., the underlying action arose from injuries sustained by the plaintiff when he was riding his bicycle along a busy street in front of an auto dealership in Palm Beach County. Just as he passed the driveway, an employee of the dealership was leaving in a van to make a delivery. The two collided. 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: May 2, 2023

Fort Myers Personal Injury Lawyer Insight for Tourists in Florida Car Accidents

by Leland Garvin

The plan was a sun-soaked, fun-filled getaway in sublime Southwest Florida. What happened was a Florida car accident. As longtime Fort Myers personal injury lawyers, we recognize there are unique concerns when visitors and vacationers from out-of-town are involved in a Florida crash. There are logistical challenges, often higher expenses, insurance questions, and uncertainty as to the full scope of your rights.

It’s important for injured tourists and vacationers to seek legal advice and representation from a local injury attorney. While there are many factors that can play into the question of jurisdiction in civil cases, personal injury claims stemming from car accidents are most often handled in the court system where the crash occurred, also known as “venue”. So if the collision happened in Fort Myers, it’s probably going to be a Fort Myers personal injury lawyer who will be the best qualified to act as your advocate – particularly if the matter gets to the point of needing to file a lawsuit.

Many civil claims stemming from Florida car accidents can be resolved without litigation. But there are complications when one of those involved isn’t a Florida resident because the Sunshine State has unique statutes pertaining to auto insurance. Florida is a no-fault state when it comes to crashes, which means all motorists (save for motorcyclists) should be covered by their own personal injury protection (PIP) coverage up to $10,000. It’s only if crash victims’ injuries meet the statutory threshold of severity outlined in F.S. 627.737 that they can step outside that no-fault system and pursue damages from at-fault parties. But tourists from other states or countries may not be required to carry PIP. What happens to them?

Questions like this are why it’s important to work with a local Fort Myers personal injury lawyer post-crash – even if you weren’t seriously hurt. It can help make for much smoother negotiations with insurers.

Notable Florida Car Accident Statistics

Florida is known for being a tourism hot spot. The University of Central Florida reports there were nearly 138 million total visitors to Florida in 2022 – a 13 percent increase from the year before. Most of those are from other states, but about 7 million are from overseas and 2.8 million from Canada. Not every single tourist is driving, but many are – and this contributes not only to the number of annual car accidents, but also the complications that can arise when non-residents are involved in crashes.

The Florida Department of Highway Safety and Motor Vehicles reports there were nearly 392,000 total Florida car accidents last year, resulting in nearly 3,500 deaths and 250,000 injuries.

Just in Lee County alone in 2022, there were:

15,282 reported crashes
135 fatal accidents, resulting in 125 deaths
8,847 crash-related injuries reported in 5,831 accidents
319 bicycle accidents reported, 0 of which resulted in deaths
333 motorcycle accidents, in which 29 people on motorcycles died
334 pedestrian accidents reported, with 33 people killed in those
4,191 hit-and-run crashes reported – in which 11 people died and nearly 800 were injured

The first thing anyone – Florida resident or not – should do after a Florida car accident is seek medical attention. If you’re in a position to do so, exchange contact and insurance information with the other motorist. Take their name, phone number, address, license plate number, insurance policy number and carrier, and jot down the make/model/color of their vehicle. Take photographs of your vehicles, the scene, any injuries. Report the accident to authorities, as well as your own auto insurer. If your injuries require a trip to the hospital (or worse), it’s a good idea to reach out to a local injury lawyer. At the very least, this will give you an idea of what to expect and on what issues specific to your case local legal advice may be beneficial.

Challenges for Non-Residents Injured in Florida Crashes

Common questions relating to challenges of non-Floridians injured in a car accident in Florida: 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

Published on: April 21, 2023

“Should I Sign a Florida Personal Injury Settlement Release Form?”

by Leland Garvin

It’s completely understandable – smart, actually – to be wary of signing any sort of a Florida personal injury settlement release form following a car accident. As our Cape Coral personal injury lawyers can explain, signing that release is typically required if you want to be paid the settlement amount. And settlements are how 95 percent of Florida injury lawsuits are resolved. But you absolutely should never rush into signing anything without having it first reviewed by a lawyer. This is especially true if the injuries you and/or your loved ones suffered were serious.

Understand that insurance companies are strategic in pressing people to sign Florida personal injury settlement release forms while they’re still recovering. They take advantage of the urgency and vulnerability many accident victims feel in the wake of an accident. They’re in pain, unable to work, the hospital bills are piling up, and they’re leaning on loved ones to help them manage basic household tasks/childcare/caregiving duties. In other words: They’re dealing with a lot, and could really use the money. Insurers often take that opportunity to dangle a “take-it-or-leave-it” carrot. They extend a settlement offer that can be much lower than what one is actually entitled to – hoping they’ll sign it quickly and give up the right to ask for anything more. We’ve seen far too many situations where accident victims find out too late that they unwittingly signed away their right to more money – sometimes a lot more.

Among the risks you’re running if you haven’t carefully considered all the implications of your signature on that document:

Published on: April 14, 2023

Florida Injury Lawsuits: Tougher to File, Win & Payout with Passing of the New Insurance Bill

by Leland Garvin

Once again, tort reform has made it tougher for victims of Florida car accidents to sue and collect fair damages for their losses. In order to get this passed the legislature has inaccurately pointed the finger at the allegation of frivolous Florida injury lawsuits and sky-high compensation payouts as the cause of high customer insurance premiums.

Reality check: Insurers are doing just fine. They even contributed $7 plus million to Florida politicians last year. Furthermore, the amount of insurance premiums paid by customers has little to do with accident claim payouts. It has a lot more to do with insurer profit margins.

Time and again, we’ve seen legislation enacted that makes it harder to sue and collect fair compensation against negligent motorists, businesses, and doctors – but fails to lower insurance premiums. Take for instance the Florida law passed in 2003 to limit medical malpractice pain-and-suffering damage payouts. At the time, state lawmakers insisted there was a “crisis” facing medical malpractice insurers that forced the industry to charge doctors super high premiums, to the point doctors had no choice but to relocate their practices out-of-state. This was all justified by basically arguing that greedy patients and plaintiff lawyers were exploiting medical malpractice insurance for big bucks. In a 2014 overturning of those damage caps, the Florida Supreme Court blasted lawmakers for their initial reasons for passing the law – while also noting it never made a dent in doctors’ insurance bills. In Estate of McCall v. U.S., the Court called the lawmakers’ justifications “arbitrary” and “irrational,” and an “offense to the fundamental notion of equal justice under the law.” In that 5-2 opinion, the court noted the effect of saving a modest amount for many meant imposing devastating costs on the few – namely those catastrophically injured. “If there ever was an alleged medical malpractice crisis” in the first place, the Court remarked skeptically in its reversal, there wasn’t one anymore.

But state lawmakers haven’t stopped trying to use this as a justification for ongoing efforts to make life easier for insurers. In the years since, they’ve continued pressing measures reducing both liability and damage awards for dangerous property conditions, car accidents, and work injuries. They’ve also targeted payouts from life and health insurance.

Now, proponents of this new law have promised that it will help eliminate the so-called “tort tax” imposed on citizens – something that doesn’t actually exist.

As you can imagine, our Fort Myers personal injury lawyers are among the many trial lawyers who strongly opposed this legislation. We believe that these new laws will disenfranchise people who have suffered serious injuries because of someone else’s wrongdoing. It’s not just lawyers, though. Other vocal opponents include doctors, bicyclists, and previous car accident victims – many of whom showed up in significant numbers at state committee hearings on the issue.

What Exactly Will this the Law Do?

The legislation – House Bill 837 and Senate Bill 236 – has made it more difficult to file, win, and fairly collect on well-founded Florida injury lawsuits. These bills were fast-tracked by lawmakers and quickly signed into law by Governor Desantis.
Continue reading

Published on: March 28, 2023

How Does Insurance Cover Cape Coral Bicycle Accident Injuries?

by Leland Garvin

Cape Coral bicycle accident injuries insurance Securing an insurance payout while recovering from Florida bicycle accident injuries isn’t always a simple matter.

Whether it’s possible at all depends a lot on the underlying facts. But in many cases, you might have several insurance claim options.

Our longtime local injury lawyers can help answer your questions about the types of crash coverage that might be available and how best to go about filing a claim.

Florida’s Ongoing Struggle to Make Biking Safer

A lot has changed in Florida in recent years. One of the things that hasn’t changed much (unfortunately) is the state’s position near the front of the pack when it comes to bike crashes.

Just recently, a 71-year-old lost his life after suffering Cape Coral bicycle accident injuries. He was struck and killed by a pickup truck driver on Country Club Boulevard. The man had been pedaling on the sidewalk when a section of it closed, forcing him to continue his journey on the outside right lane. The driver who struck him was towing a dump trailer and reportedly swerved to avoid a collision with vehicles in the left lane. Nearby residents told WINK News there was really “no way for (the bicyclist) to go anywhere else, and he was traveling with the direction of travel.”

Road design in the U.S. – particularly in the South – has long made foot and bicycle traffic an afterthought. According to the National Highway Traffic Safety Administration (NHTSA), 985 bicyclists died in U.S. road accidents last year, up 5 percent from the year before. Analysis by Smart Growth America (which releases an annual “Dangerous By Design” report on the safety of vulnerable road users) has concluded that systemic oversights with traffic engineering contribute to the high number of fatal pedestrian and bicycle accidents in Florida and beyond. Solutions like median islands, traffic signals with exclusive pedestrian & bicycle phases, giving cyclists and walkers a head start before green lights, and lowering speed limits can go a long way. Some cities have committed to adopting these measures with some success, but it’s been slow-going.

Other issues to tackle include driver distraction, visibility impairments, and drivers just generally not watching for or failing to use reasonable care around bicyclists.

Will Insurance Cover My Cape Coral Bicycle Accident Injuries?

Insurance coverage available to cover the fall out from your Florida bike crash injuries will depend on several factors (i.e., how badly you’re hurt, what you were doing at the time, where the crash occurred, who was involved, what type of vehicles were involved, who was at-fault, how much/what type of insurance each person has, etc.).

As Cape Coral injury lawyers, some of the possibilities for financial compensation following a cycling accident may include: Continue reading

Published on: March 14, 2023

A Dangerous Walk: Record High Risk of Fatal Florida Pedestrian Accidents

by Leland Garvin

Florida pedestrian accident lawyer A sidewalk stroll in the South Florida sunshine should be a safe way to spend an afternoon. Unfortunately, walking alongside, in, around, and across Florida roadways is quite dangerous – and it’s only gotten worse in recent years. According to a new report by the Governors’ Highway Safety Association, the rate of deadly Florida pedestrian accidents ranks No. 2 in the nation, rising by 31 percent between 2020 and 2021. Nationally, drivers struck and killed nearly 7,500 people last year. That’s about 20 pedestrian accident deaths every day – more in any single year for the past 40.

Pedestrian deaths are most common in urban areas, particularly at night, and especially October-January. People 70 and older accounted for 38 percent of pedestrian accident deaths. High vehicle speed, increasingly larger vehicle size, lacking pedestrian infrastructure, and growing driver distraction are all cited as contributing causes to this serious and growing problem.

These stark statistics overshadow the fact that every single one of those numbers is the devastating loss of someone’s somebody – mom, dad, brother, sister, daughter, son, grandparent, or friend. Compounding the grief for so many is the fact that a sizable percentage of Florida pedestrian accidents are caused by hit-and-run drivers.

Our team of Fort Myers personal injury lawyers recognizes the unique challenges in pursuing civil litigation for pedestrian accidents. We have a track record of notable success in this area, even with more challenging cases. We’re committed to helping Southwest Florida pedestrian accident victims and their loved ones navigate their next steps, identifying avenues for potential legal action and offering advice on the most viable approaches. Continue reading

Published on: February 17, 2023

Why Fort Myers Motorcycle Accident Claims Are Trickier Than Your Typical Crash Case

by Leland Garvin

No two crash claims are going to be exactly the same. And Florida motorcycle accident claims especially tend to be a bit more complicated than your “typical” crash case (to the extent such a thing exists). There are a few reasons for this, as our Fort Myers motorcycle accident lawyers will explain further down.

Last year, in 2022, the Florida Department of Highway Safety & Motor Vehicles reported there were a total of 9,009 motorcycle crashes in the State of Florida. (Those are preliminary figures, which means they could ultimately increase.) Those collisions were associated with 7,765 injuries and 574 deaths. This means that of the more than 3,100 fatal total crash deaths recorded in Florida over the previous 12 months, 27 percent were motorcyclists. Of the total number of people injured in Florida traffic accidents, 5 percent were motorcyclists. This is despite the fact that motorcycles make up just 3 percent of the state’s total registered vehicles and account for just 1 percent of total vehicle miles traveled.

Florida has the unfortunate (though deserved) reputation of having one of the country’s highest motorcycle accident rates. Being one of the most populous states, of course there are going to be more crashes overall. However, even when controlling for population, the motorcycle injury and death rate is high. Part of this has to do with Florida being a destination for riders from across the country. We also have year-round sunny weather that’s ideal for riding, so residents and tourists alike tend to ride more. High speed limits and widespread driver distraction don’t help.