What happens when a Driverless Car is in a Car Accident?

What happens when a Driverless Car is in a Car Accident?

As you may know by now Google driverless cars have become “legal” in that the Google AI driver is now considered a driver. This is a decision made my the National Highway Transportation Safety Administration or NHTSA. This raises a lot of questions as to what the future may look like if one is in a car accident.
Some experts had estimated that in 15-20 years 90% of the vehicles on the road will be driverless or will have some form of assisted driving. The upside to driverless cars is that traveling will be cheaper, safer, and easier. The obvious downside would be that you don’t have someone to directly communicate with the driver, and you will be entrusting sensors and programming with your life. Moreover, most people will feel uneasy, at least at first, having a program or AI controlling a vehicle. Driving is a dangerous activity, whenever we stepped foot into another person’s vehicle we implicitly charge them with the duty that they will be safe.

Will Google’s driverless car be safe?

Short answer: It should be. As a personal injury attorney that handles car accidents for the last 31 years this issue is of great interest to me.  It could be the case that a driverless car will be safer if all cars on the road where automated. However, what happens when an automated vehicle is in an accident with a human driver? Google claims that their cars could drastically reduce the amount of accidents because 94% of accidents involve human error. Google also claims that “its self-driving cars have caused exactly zero collisions in the 1.2 million miles of autonomous driving they’ve done since the project started in 2009.” The Google spokes women went on to say that “We publish the details of all crashes we’ve been involved in on our website each month, and there’s a clear theme of human error and inattention.” So, does this mean that a Google driverless vehicle will never be at fault? Certainly not, however when an accident does occur many complex legal issues will inevitably arise.
 However, when people are injured in motor vehicle accidents involving driverless vehicles, like Google’s car. We will see two cases instead of one. In a stereotypical car accident the party at fault may be sued as a result of their negligence. If there is a driverless car involved we may see two lawsuits, one against the party that may have been negligent, and the other against the company that manufactured the vehicle or driverless technology that runs the vehicle. This type of litigation, is very expensive, very time-consuming, and will make it more difficult for an aggrieved to plaintiff to have their day in court.
The chart below demonstrates how a driverless vehicles could change what options an injuries person has if they are in a car accident.
The first party is the Plantiff or injured party, the second party is the Defendant who we will presume they are at fault.

(AI = Driverless vehicle)

  • Human rear ended by a Human
  • Negligence action filed against an insurance company
  • Possible product liability action e.g. airbag defect. Usually not a factor.
  • Human rear ended by by AI
  • Product liability action: Defective design/engineering/programming
  • AI rear ended by a Human
  • Negligence action filed against insurance companies
  • AI v. AI
  • Product Liability only.
This is only the beginning, we may see evolutions in the law or evolutions in Way motor vehicle accident cases are handled.
Predictions on What this will all mean:
The widespread use of driversless cars will bring about the constriction of the motor vehicle accident case load that the courts have today. As a result, a lot of personal injury firms will shrink and or transition into other lines of tort related litigation. This, overall will be a good thing if it means that fewer people are injured in motor vehicle accidents. Driverless cars will also mean fewer/smaller auto insurance companies. Fewer health insurance claims, ideally cheaper premiums, but I doubt that. Fewer body shops, or salvage purchasers. Car manufacturers may shrink as well.  Overall, there will be a massive change across many industries and it’s only a matter of time.

Porsche

What you need to know about law school

What you need to know about law school

by Michael Perenich

At times when school was tough I would always think back to my friend from University of South Florida that lived in his car, and got by with only the essentials. I offered him my couch to sleep on, but he declined because he didn’t want to be burdensome—this was his cross to bear. This first thing I noticed about this relatively quiet and interesting character was that he was well-spoken, and always prepared for class. The next thing I noticed was that he was very busy, later I found out he was taking almost twice the normal load of classes. This was a very sh0cking revelation, when I asked him he told me that he was going to complete two years of undergrad in one–and he did. Not only did he graduate, but he got straight A’s. He went to law school, graduated, and became barred in 4 states, I invite you to look him up, Augustus Invictus.

Perenich Caulfield Sponsor Clearwater’s Sea Blues Festival for our 60th year in business!

Giving Back To The Community

For our 60th year in business we are happy to announce that we will be sponsoring Clearwater’s Sea Blues Festival. As some of you know we are Florida’s oldest personal injury law firm, and we thought it would be a great idea to get back to the community. By being a title sponsor of Sea Blues Festival we can ensure that this event will be free for all to attend. Please come out and join us:

When: February 21st and 22nd

Where: Coachman Park Clearwater.
What: There will be food vendors there and live music. On Saturday we will have Amos Lee, Otis Taylor, Jarekus Singleton, Sena Ehrhardt, and The Flood Brothers. Sunday: Robert Randolph and the family band, Robben Ford, Joanne Shaw Taylor, and AJ Ghent Band.
To hear more about the lineup please click here .

Perenich Caulfield sponsoring Sea Blues

It has been our privilege and honor to represent those who have been injured in the Tampa Bay Clearwater area. And given that the majority of our clients are from this area we sat down to think about how we can best get back to the community that has given us so much. We wanted to be able to invite all of our current clients and past clients to an event that everyone could enjoy.  Although the event is centered around blues music, you should know that there will be a good diversity of music at this event.

Perenich Caulfield Avirl Noyes Sponsors Sea Blues

We are more than Car accident Lawyers here at Perenich Caulfield Avril Noyes, we are vanguards of your rights and we ready and willing to help you when you need us.

What you don’t know about medical malpractice:


This video sheds light on the problems involved with the Board of Medicine in Florida and the internal policing thereof. This report will leave you wondering, how do they let the stuff happen? And that’s a question many of our clients ask themselves after something like this happens to them. Ostensibly the Florida legislature has been persuaded that medical malpractice lawsuits are out of control, and they’ve put limitations on people bringing legitimate and rightful claims such as the one seen this video. The assault on personal injury attorneys, and the American civil justice system was launched by the federal Chamber of Commerce and other special business interests that seek to maximize their own profits by minimizing potential claims plaintiffs may have against them. In other words big businesses are receiving better protection under law while normal everyday people Due to the lack of prosecution by the Florida Board of medicine, attorneys are asked to enforce the law and file lawsuits against doctors. It should be understood that doctors make mistakes, everyone makes mistakes, but the question is: did the doctor deviate from the standard of care and did that deviation cause the plaintiff substantial injuries?.

How Floirda has taken your rights in Medical Malpractice Lawsuits

Mark Perenich is a medical malpractice attorney in Clearwater/Tampa area, after 30 years we he has seen everyday people become barred from the court.  After the legislature made unjust law based on wrong/misguided/incorrect information, our law makers decided to limit your rights.  The statutory scheme created is not fair, and it does not accomplish the goals the legislature sought out to accomplish.  We explore these issues and more in the expose below.  I would like to thank Mr. Siegel for the contribution below, it was well written and well-thought-out; I instantly felt compelled to post it to my site.

 

Access to the Courts: Constitutional Protection vs. Legislative Limitation

 I.         Introduction

The right for every American to have their day in court is the foundation for American jurisprudence. As Justice Marshall wrote, “The very essence of civil liberty certainly consists in the right of every individual to claim the protection of the laws, whenever he receives an injury.” Marbury v. Madison, 5 U.S. 137, 163 (1803). If an injured individual was not guaranteed the opportunity to seek proper redress in the courts, our civil laws would lack any significant means for enforcement. Although the United States Constitution does not contain a specific provision guaranteeing access to courts, the Florida Supreme Court “has held that there is such a right arising from several constitutional provisions including the First Amendment, the Due Process Clause, and the Equal Protection Clause.” Mitchell v. Moore, 786 So.2d 521, 525 (Fla. 2001). Tellingly, 39 states do expressly guarantee their citizens remedies from tortious injuries. David Schuman, The Right to A Remedy, 65 Temp. L. Rev. 1197, 1201 (1992).

law books
law books

Guaranteed access to the courts for Florida’s citizens has been engrained in Florida’s Constitution since its first adoption in 1838. Fla. Const. of 1838, art. I, §9. Unlike the U.S. Constitution, Florida’s Constitution expressly guarantees a citizen’s access to seek proper redress in the court system. Traylor v. State, 596 So.2d 957, 963 (Fla. 1992). Because the right to access the courts is expressly stated in Florida’s Constitution, “it deserves more protection that those rights found only by implication.” Mitchell v. Moore, 786 So.2d 521, 527 (Fla. 2001). Article 1, section 21 of the Florida Constitution states, “The courts shall be open to every person for redress of any injury, and justice shall be administered without sale, denial or delay.” Fla. Const. art. I, § 21. Because it is included in the Declaration of Rights of the Florida Constitution, “[t]he right to go to court to resolve our disputes is one of our fundamental rights.” Psychiatric Associates v. Siegel, 610 So.2d 419, 424 (Fla. 1992).

Historically, courts have liberally interpreted article I, section 21to ensure “broad accessibility to the courts for resolving disputes.” Id. As time has passed, the Florida Constitution’s access to courts provision has been applied to everything from prisoners’ rights to the right to redress for injuries in tort. The access to courts provision provides a check on the powers of legislative and administrative bodies. “State constitutional remedy guarantees were adopted against a backdrop of centuries of concern about governmental interference with people’s ability to obtain justice in the courts.” 3 Litigating Tort Cases § 29:15. Throughout Florida’s history, the legislature enacted laws infringing on citizens’ access to the courts, and over time the Florida Supreme Court came to develop a test to determine whether such legislative action could be held constitutional.

The primary purpose of this discussion is to explain Florida’s constitutional right of access to the court, and how the courts handle when the legislature infringes on the right. In particular, tort reform measures have placed significant limitations on an injured claimant’s constitutional right to access the courts. Under Florida’s current framework of laws dealing with medical malpractice lawsuits, it is evident that a claimant’s right to access the courts has been infringed upon. Powerful stakeholders in the “tort reform” battle have many competing interests constantly clashing with each other. Although the focus should be on the patient, and is often claimed to be when a particular stakeholder crusades for a cause, other less altruistic motives also appear to be a driving force behind action taken to limit damage awards.

This discussion will also illustrate and explain the various constitutional issues arising from liability “caps” on noneconomic damages in medical malpractice lawsuits. Beyond the justifications for or against enacting such legislation, compelling public policy reasons exist as to why medical malpractice liability caps should be held invalid by the courts. Although the laws in place may allow for less burdensome litigation for injured parties with small claims, the people who are injured most by medical negligence pay the price. Finally, action limiting attorney fees, while on its face appearing to benefit a potential party or cause, can also have adverse consequences on a party’s ability to access the courts.

II.         Access to the Courts and the Kluger Test

Embodying the principles of Florida’s Constitution and case precedent, the Florida Supreme Court’s decision in Kluger v. White, 281 So.2d 1 (Fla. 1973), is “[t]he seminal case in a constitutional challenge to the right of access to courts.” Univ. of Miami v. Echarte, 618 So.2d 189, 193 (Fla. 1993). Kluger’s holding articulates the modern test for whether a statute violates the constitutionally protected rights for citizens to access the courts. The Florida Supreme Court has held:

[W]here a right of access to the courts for redress for a particular injury has been provided by statutory law predating the adoption of the Declaration of Rights of the Constitution of the State of Florida, or where such right has become a part of the common law of the State pursuant to Fla.Stat. s 2.01, F.S.A., the Legislature is without power to abolish such a right without providing a reasonable alternative to Personal injury lawprotect the rights of the people of the State to redress for injuries, unless the Legislature can show an overpowering public necessity for the abolishment of such right, and no alternative method of meeting such public necessity can be shown.

Kluger v. White, 281 So.2d 1, 4 (Fla. 1973). For legislative action to pass an access to the courts constitutional challenge, it must satisfy the Kluger test.

Specifically, in Kluger the issue was whether the legislature could abolish a common law or statutory right of action in existence prior to the adoption of the Florida Constitution in 1968 without providing an adequate alternative. Id. There, the plaintiff’s vehicle was damaged in a car accident caused by the negligence of the other party. Id. at 2. But, the legislature had passed a statute in 1971 essentially barring tort actions for property damage from car accidents when an automobile owner did not carry property damage insurance and suffered damages of $550 or less. Id. Because the plaintiff’s vehicle was only worth $250, and the plaintiff did not carry their own property damage insurance, they fell within the class of those barred from bringing a tort action. Id. at 3. The plaintiff challenged the statute on the grounds that abolishing a cause of action in tort without providing any other means for redress violated the access to courts provision of the Florida Constitution. Id.

For the first time, the Florida Supreme Court specifically considered whether the legislature had the power to abolish an existing remedy without providing alternative means for an injured party to seek proper redress. Id. at 3. Following previous Florida Supreme Court decisions, the court reiterated that the “Declaration of Rights of the Constitution of the State of Florida does apply to State government and the Legislature.” Kluger v. White, 281 So.2d 1, 4 (Fla. 1973) (citing Spafford v. Brevard County, 110 So. 451 (Fla. 1926)). Thus, the legislature is not exempt from abiding by the Florida Constitution, and constitutional guarantees such as access to the courts are protected from legislative action that offends such constitutional rights. Furthermore, the Court acknowledged that a tort law cause of action existed prior to 1968 for damage resulting from automobile negligence. Kluger, 281 So.2d at 4. Therefore, because a common law right to sue for the particular injury caused was abolished by the statute in question, and since the legislature is not shielded from adhering to the protections of the Florida Constitution, the court had to consider whether the legislature had the power to pass the statute in question. Id.

The defendant argued that the rule expressed by the Court did not comport with previous rulings on similar legislative actions. Id. To support their theory, the defendant raises, among other examples, the issue of workers’ compensation rights. Id. However, the court rejects the defendant’s argument and differentiates the workers’ compensation laws from the type at issue here. Id. With the workers’ compensation system, the legislature abolished the employee’s right to sue an employer in tort for a workplace injury, “but provided adequate, sufficient, and even preferable safeguards for an employee who is injured on the job.” Id. So, the employee did lose their right to sue an employer, but in return benefited from a system being put in place to facilitate timely receipt of benefits for an injured employee. Thus, the workers compensation laws provided a tradeoff to the benefit of the employee. Therefore, the statute satisfied the first prong of the Kluger test because it provided a reasonable alternative to protect the rights of injured employees. Id.

Here, the legislature neither provided a reasonable alternative for the plaintiff to seek redress for their injuries nor demonstrated a public necessity requiring the total abolition of the right to sue in tort. Id. at 5. As the facts of this case illustrate, the plaintiff is in a position where they cannot seek proper redress for injuries caused to them through the negligence of another. Id. If the legislature had required the plaintiff to carry mandatory property damage insurance, it is possible that a reasonable alternative could have existed. Id. But, without showing any public necessity or providing any other means of adequate protection, the legislature lacked the power to abolish the common law right of action to sue for automobile negligence. Id. Therefore, the statute in question was held to be an unconstitutional infringement on the plaintiff’s right to access the courts. Id.

III.         Tort Reform and Florida Jurisprudence Dealing with Medical Malpractice Claims

After Kluger, tort reform efforts over the years have resulted in laws limiting liability in medical malpractice lawsuits. A prime example of legislative action infringing on rights guaranteed under article 1, Doctor Clearwatersection 21 of the Florida Constitution is the legislature limiting liability in medical negligence actions. As evidenced in the cases below, the Kluger test has been used as a barometer to determine whether such legislative actions are constitutional. Primarily, the legislature has attempted to limit liability in medical malpractice lawsuits by enacting statutory “caps” on noneconomic damages to injured plaintiffs. Over time, these “caps” have evolved from only being applied in limited circumstances, into now a full blown limitation on a plaintiff’s ability to seek proper redress in the courts for their injuries.

  1. The 1986 Tort Reform and Insurance Act

The legislature enacted the 1986 Tort Reform and Insurance Act in response to a perceived crisis found to have existed in the commercial liability insurance market. Smith v. Dep’t of Ins., 507 So.2d 1080, 1084 (Fla. 1987). In particular, there was a public concern that commercial liability insurance was becoming both unaffordable and unavailable. Id. at 1095. As a result, the legislature created and commissioned the Academic Task Force to review the insurance industry and tort system and make findings to the legislature. Univ. of Miami v. Echarte, 618 So.2d 189, 191 (Fla. 1993). Those findings, and subsequently the laws passed by the legislature, are the foundation for Florida’s modern system for limiting liability in medical malpractice suits.

The Florida Supreme Court first examined the constitutionality of provisions of the 1986 Tort Reform and Insurance Act in Smith, 507 So.2d at 1080. After the act was passed into law, both trial lawyer and insurance interests challenged its constitutionality. Id. at 1083. In particular, the trial lawyers challenged the validity of the $450,000 limitation on noneconomic damages in medical malpractice lawsuits. The trial lawyers argued that capping noneconomic damages unconstitutionally denies claimants access to the courts under article 1, section 21 of the Florida Constitution. Id. at 1087.

In response, the appellee argued that the legislature did not abolish the cause of action to sue in tort for medical negligence, but that it only limited the amount of damages that could be recovered. Id. at 1088. Because a plaintiff was still able to bring suit, the appellee argued that the plaintiff had not been denied the right to access the courts. Id. But, the court rejected that argument and said that access to the courts must be read in conjunction with the constitutional right to trial by jury, guaranteed under article 1, section 22 of the Florida Constitution. Id. By arbitrarily capping noneconomic damages, the court found that the plaintiff is not getting the benefit of either constitutional right. Id. at 1088-89.

First, “[a] plaintiff who receives a jury verdict for, e.g., $1,000,000, has not received a constitutional redress of injuries if the legislature statutorily, and arbitrarily, caps the recovery at $450,000. Id. at 1088. Furthermore, if a jury finds that the proper redress for a plaintiff’s injuries is a particular amount, and that amount is then arbitrarily capped and reduced, the plaintiff is not receiving the constitutional benefit of a jury trial. Id. at 1088-89. Finally, the court expresses concern that accepting the appellee’s reasoning would mean that the legislature could limit recovery to “even $1” and not be totally abolishing the right for a plaintiff to sue. Id. at 1089. As the Court aptly states, “There are political systems where constitutional rights are subordinated to the power of the executive or legislative branches, but ours is not such a system.” Id.

Having determined that the $450,000 cap on noneconomic damages infringes on a plaintiff’s constitutional right to access the courts, the court applies the Kluger test to determine whether the limit should nonetheless be held constitutional under one of the Kluger exceptions. Id. at 1088. Under the first prong of the Kluger test, the court determined that the legislature provided no alternative remedy or commensurate benefit to the plaintiff in imposing a $450,000 cap on noneconomic damages. Id. In the court’s view, the cap’s benefits were only in favor of potential defendants. Id. Furthermore, the court stated that any benefit to a potential plaintiff was speculative, and that the court could not interfere with a constitutional right under such circumstances. Id. at 1089. Finally, the court mentioned that no argument was ever raised that the legislature passed the $450,000 cap “based on an overpowering public necessity for the abolishment of such right, and no alternative method of meeting such public necessity can be shown.” Smith, 507 So.2d at 1089 (quoting Kluger, 281 So.2d at 4). Therefore, because neither of the Kluger exceptions was satisfied, the Court held the $450,000 cap on noneconomic damages unconstitutional. Id. at 1095.

The Smith Court’s decision reflects the view that a universal cap on noneconomic damages in malpractice lawsuits benefits only the defendant, in that a patient or claimant is unlikely to be negligent. Id. at 1088. Smith’s holding demonstrates the court’s desire to protect the constitutional right for all injured claimants to access the courts and seek proper redress. Here, the legislature attempted to limit damages awarded to those claimants with the highest dollar value to their injuries. Id. In this situation, the court was unwilling to give the legislature the power to take away a severely injured party’s right to have his day in court based only on justifications it found to be speculative. Id. As later cases will demonstrate, the court became more deferential to the legislature as time passed.

  1. Voluntary Arbitration

After the Florida Supreme Court held the $450,000 cap on noneconomic damages unconstitutional in 1987, the legislature continued to pursue ways to address the perceived crisis in liability insurance rates, specifically in the context of medical malpractice lawsuits. Univ. of Miami v. Echarte, 618 So.2d 189, 191 (Fla. 1993). Several significant findings were made by the legislature. Id. First, the Task Force found that Picture of a brain injury in a medical malpractice case.the primary reason medical malpractice premiums had increased dramatically was the large increase in loss payments, “and not excessive insurance company profits nor the insurance industry underwriting cycle.” Id. Specifically, the large increase in loss payments was primarily due to the size of paid claims, as the amount of claims against physicians had not significantly increased. Id. Furthermore, the Task Force found that defending a malpractice claim had increased at a seventeen percent yearly rate for the past eleven years. Id. In addition, “attorneys’ fees and other litigation costs were found to represent approximately 40 percent of the total costs of insurance companies,” while tort victims were only receiving about 43 percent “of the insurers total costs.” Id.

To combat these problems, the Task Force recommended a comprehensive scheme “to stabilize and reduce medical liability premiums.” Id. First, the Task Force recommended that parties conduct a reasonable investigation before allowing a malpractice claim to move forward, the goal being to eliminate frivolous lawsuits and defenses. Id. In addition, the Task Force recommended an arbitration system be put in place that provided “incentives for parties to arbitrate medical malpractice claims in order to reduce litigation expenses.” Id. Presumably, the comprehensive scheme was meant to create a more efficient system for resolving disputes between tort victims and negligent parties.

Relying on the Task Force, the legislature adopted its findings into law through section 766.201, Florida Statutes (Supp. 1988). Id. The legislature’s plan under section 766.201 contained two separate components, presuit investigation and voluntary arbitration. “Sections 766.203-.206 set out the presuit investigation procedure that both the claimant and defendant must follow before a medical negligence claim may be brought in court.” Id. at 192. Before a plaintiff can provide notice to a defendant of intent to bring a malpractice suit, a plaintiff must conduct an extensive investigation that includes demonstrating reasonable grounds that a defendant’s negligence caused the claimant’s injury, and furthermore must provide an expert opinion to corroborate such a claim. Fla. Stat. Ann. § 766.203(2) (2004). In response to a plaintiff’s corroborated malpractice claim, a defendant must engage in a similar process to establish any viable defenses it has against a plaintiff’s claim. Fla. Stat. Ann. § 766.203(3) (2004).

If the presuit investigation establishes preliminary reasonable grounds to move forward with a claim, either party may offer to have damages determined by an arbitration panel. Fla. Stat. Ann. § 766.207(2) (2003). Under section 766.207, an agreement between the parties binds both parties to the arbitration panel’s determination and precludes a plaintiff from any other remedy against a participating defendant. Echarte, 618 So.2d at 193. If both parties agree to move forward with arbitration, the plaintiff’s damages are limited to up to $250,000 per incident, but are reduced on a percentage basis based on the arbitration panel’s determination of the plaintiff’s loss of capacity to enjoy life. Fla. Stat. Ann. § 766.207(7) (2003). In the event that a claimant rejects a defendant’s offer to arbitrate, that claimant may proceed to trial but noneconomic damages are capped at $350,000 under section 766.209(4), Florida Statutes (2004).

Five years after the legislature adopted binding arbitration, the Florida Supreme Court in Echarte, 618 So.2d at 190, decided whether capping the amount of noneconomic monetary damages a plaintiff can recover under sections 766.207 and 766.209 violates a plaintiff’s right to access the courts. In Echarte, a minor child’s parents had given the defendant hospital notice of their intent to file a medical malpractice lawsuit over injuries to their daughter. Id. The hospital responded by requesting that the parents agree to have damages determined by a medical negligence arbitration panel under section 766.207(2). Id. At that point, the claimants file for a declaratory judgment as to whether sections 766.207 and 766.209 were constitutional. Id.

The trial court ruled in favor of the Echartes and held that the statutes violated multiple constitutional provisions, including equal protection guarantees, substantive due process rights, right to trial by jury, an improper taking without compensation and right of access to the courts, among others. Id. at 191. Afterwards, the district court affirmed but expressly limited its opinion to the access to courts issue. Id. Significantly, the Florida Supreme Court also limited its opinion to the access to courts challenge, but stated that “we have also considered the other constitutional claims and hold that the statutes do not violate” any of the other constitutional provisions raised by the trial court. Id. at 191. As the history of litigation and uncertainty surrounding the statute in questions illustrate, this superficial analysis did little to settle the constitutional arguments in question.

Like other cases dealing with a constitutional challenge to the right to access the courts, the court applies the Kluger test to determine whether the arbitration statutes impermissibly infringed on a plaintiff’s right to fully recover noneconomic damages for their injuries. Id. at 194. The issue under the first exception of the Kluger test was whether the statutes provided a commensurate benefit for an injured party losing their right to fully recover noneconomic damages. Id. Here, the court found several reasons why the statutes did provide such a commensurate benefit. First, the parties agreeing to arbitration results in expedited resolution of cases without the inherent risk of litigation, or the burden of proving fault in a civil lawsuit. Id. Next, “the claimant benefits from the requirement that a defendant quickly determine the merit of any defenses and the extent of its liability.” Id. Furthermore, a claimant saves litigations costs, including attorneys’ fees and expert witness fees. Id. Finally, the claimant’s ability to collect damages is greatly improved by the statutes mandating joint and several liability of defendants, prompt payment of damages, and interest and penalties for a defendant’s failure to pay in a timely fashion. Id.

In addition, the court found that the arbitration statutes also satisfied the second exception of the Kluger test because there was an overpowering public necessity to ensure liability insurance, and no alternative to accomplish that goal. Id. at 195. In determining whether an overpowering public necessity existed, the court stated that the “[l]egislature has the final word on declarations on public policy, and the courts are bound to give great weight to legislative determinations of facts.” Id. at 196.The court cites the legislature’s findings adopted in section 766.201(1) (a) that sharply rising medical malpractice insurance rates were leading to “increased unavailability of malpractice insurance for physicians.” Id. “Because the Legislature’s factual and policy findings are presumed correct and there has been no showing that the findings … are clearly erroneous … the Legislature has shown that an “overpowering public necessity” exists.” Id. at 196-197.

Next, the question under the second prong of Kluger was whether an alternative method existed to alleviate the malpractice insurance crisis. Id. at 197. The Echartes argued that the Task Force had found that alternative methods for reducing malpractice insurance rates existed, for example strengthening regulation and professional discipline of doctors who had committed malpractice frequently. Id. But, to determine whether an alternative means existed, the court stated that “the plan as a whole, rather than focusing on one specific part of the plan, must be considered.” Id. Based on the Task Force’s findings the court found that it was “clear that both the arbitration statute, with its conditional limits on recovery of noneconomic damages, and the strengthened regulation of the medical profession are necessary to meet the medical malpractice insurance crisis.” Id. Therefore, because there was no alternative or less onerous means for managing the insurance crisis, an overpowering public necessity, the statutes satisfied the second prong of the Kluger test. Id.

In conclusion, the court’s finding that the voluntary arbitration statutes provide a commensurate benefit to injured claimants is the crux of the public policy debate. The issue is whether those claimants who are most severely injured should have their damages arbitrarily capped to facilitate a system that benefits claimants with small claims. Although the court stresses their deference to legislative findings, something seems amiss for the court to determine that the voluntary arbitration statutes benefit injured claimants without once mentioning the effect it has on those whose damage awards will be arbitrarily reduced. Is there no merit to the argument that a claimant whose damage award is arbitrarily capped in fact gains no commensurate benefit from the liability caps? Surely, those most severely injured by medical malpractice are part of that same group of injured claimants which voluntary arbitration provides such a benefit for.

  1. Current State of Noneconomic Damage Caps

In 2003, the legislature went a step further and enacted broad limitations on noneconomic damages, regardless of whether a defendant initiated voluntary arbitration or not. Under section 766.118(2), Florida Statutes (2011), practitioners such as doctors and hospitals are generally individually liable for noneconomic damages of no more than $500,000 in the aggregate. If a severe injury, such as death or permanent coma occurs, a claimant may be able to collect up to $1,000,000. Fla. Stat. Ann. § 766.118(2) (2011). In passing section 766.118, the legislature again adopted an across-the-board cap on noneconomic damages, limiting such awards without providing any reasonable alternative or commensurate benefit for an individual plaintiff seeking redress for their injuries. But this time, after learning their lesson from the $450,000 cap held unconstitutional in Smith, 507 So.2d at 1089, the legislature did “find” that there was an overwhelming public necessity, and no other way to deal with the crisis. Estate of McCall v. United States, 663 F.Supp.2d 1276, 1302 (N.D. Fla. 2009) aff’d in part, question certified sub nom. Estate of McCall ex rel. McCall v. United States, 642 F.3d 944 (11th Cir. 2011).

As of yet, neither voluntary arbitration nor the across-the-board cap on noneconomic damages under section 766.118 have been found to violate the access to courts provision of the Florida Constitution. But, both continue to be attacked as unconstitutional. In 2010, the constitutionality of voluntary arbitration was certified to the Florida Supreme Court in Parham v. Florida Health Sciences Ctr., Inc., 35 So.3d 920, 929 (Fla. 2d DCA 2010) review dismissed, 38 So.3d 771 (Fla. 2010). There, the appellant made two novel arguments not previously considered by the court. First, the appellant argued that legislative findings should not last forever, and that the legislature should have to show that a valid medical malpractice insurance crisis still exists. Id. at 925. Next, the appellant argued that the $250,000 cap in section 766.207, as well as the $350,000 cap in section 766.209, were established in 1988 and have never been adjusted for inflation. Id. at 925-926. Based on the appellant’s arguments, the court certified whether the $350,000 noneconomic damage cap in section 766.209(4) remained constitutional in light of the fact that the legislature had never adjusted the amount of the cap, nor had they ever been asked to confirm that the “overpowering public necessity” that justified the cap in 1988 still existed in 2009. Id. at 925. Unfortunately, the case settled while the certified question was waiting for review by the Florida Supreme Court. Thus, the issues raised by the appellant are still up in the air.

Interestingly, this case settled after making it all the way to the Florida Supreme Court. One could wonder as to why the defendant was motivated to settle after successful decisions at trial and on appeal. Arguably, stakeholders interested in preserving voluntary arbitration in its current form saw merit in the appellant’s argument and decided it was better to settle the case than have the Florida Supreme Court examine such issues. If so, this provides an excellent example of the interplay of various stakeholders involved in a medical malpractice lawsuit. On one hand, the appellant vigorously argued that the legislature should have to justify to the public that the $350,000 cap was still “essential to overcome the public’s right of access to courts. Id, at 925 (emphasis added). But, as an individual, the appellant apparently made the decision that it was in their best interest to settle their case. On the other hand, the defendant hospital and physicians apparently determined that it was in their best interest to settle with the appellant instead of face further litigation. Unfortunately, conflicting interests pull tort reform measures back and forth like a game of tug-of-war, while specific injured parties are left powerless, at the mercy of who has the stronger argument on any particular reform campaign.

As to section 766.118, the Florida Supreme Court has yet to make any determination as to the validity of the statute. But, in May 2011, several questions as to the constitutionality of section 766.118 were certified to the Florida Supreme Court by the 11th Circuit in Estate of McCall ex rel. McCall v. United States, 642 F.3d 944 (11th Cir. 2011). The court acknowledged that the application of the Florida Constitution to noneconomic damage caps remains “unsettled” and asked the Florida Supreme Court to determine whether section 766.118 violated the right of access to the courts under article I, section 21 of the Florida Constitution. Id. at 952. Furthermore, the court certified to the Florida Supreme Court whether the statutory cap on noneconomic damages violates the right to trial by jury, or the separation of powers guaranteed by the Florida Constitution. Id. at 952-953. With these constitutional issues before the Florida Supreme Court, it remains to be seen what the future of noneconomic damage caps in Florida will be.

Regardless, the issues surrounding tort reform are not likely to be settled any time soon. Although the court will rule on the constitutionality of section 766.118 in the near future, the validity of voluntary arbitration is not before the court. Depending on whether voluntary arbitration is invoked before trial or not determines exactly which statutes a claimant will challenge as unconstitutional. If voluntary arbitration is offered by a defendant, a claimant is going to attack sections 766.207 and 766.209. If not, a claimant whose damage award is arbitrarily capped after trial will challenge the constitutionality of section 766.118. Furthermore, as the insurance market and political climate changes, so will the stakeholders and interests. History suggests that tort reform efforts are here to stay and that powerful stakeholders other than the patient will continue to shape the future of medical malpractice litigation in Florida.

IV.         Limiting Attorney Fees

Limitations on attorney fees have been incorporated into Florida’s Constitution in several areas of the law, including workers’ compensation, medical malpractice, and death penalty cases. In each situation, justifications for such limitations appear to be based primarily on public policy arguments. In death penalty cases, it is vital that a criminal defendant’s right to representation be protected, especially when he is facing death. With workers’ compensation laws, the goal is to protect an injured employee’s limited benefit award. For medical malpractice suits, the purpose of limiting attorney fees is to allow the plaintiff to collect more of their damage award. Case law illustrates how limitations on attorney fees in each of these situations are protected by the Florida Constitution.

  1. Workers’ Compensation

First, workers’ compensation laws are in place to create a simple, inexpensive method for injured employees to recover benefits from their employer, placing the burden of supporting the injured employee upon the employer itself. Samaha v. State, 389 So.2d 639, 640 (Fla. 1980) (quoting Port Everglades Terminal Co. v. Canty, 120 So.2d 596 (Fla.1960)). Allowing an attorney to collect a large portion of an injured employee’s benefits would interfere with the public policy behind the enactment of workers’ compensation laws, facilitating “necessary minimum living funds” for an injured employee and shifting the responsibility of caring for that person away from society generally. Id. Therefore, the state has a legitimate interest in regulating attorney fees to protect the claimant’s benefits. Id. As the court noted, the United States Supreme Court found similar workers compensation laws to be a valid exercise of a state’s police power. Samaha, 389 So.2d at 641 (citing Yeiser v. Dysart, 267 U.S. 540 (1925)).

 

  1. Death Penalty Cases

In death penalty cases, constitutional issues arise when limits on attorney fees in death penalty cases interfere with “the court’s inherent power to ensure the adequate representation of the criminally accused.” Makemson v. Martin County, 491 So.2d 1109, 1112 (Fla. 1986). Facially, the right for the legislature to “appropriate funds for public purposes and resolve questions of compensation” is grounded in article III, section 12 of the Florida Constitution. Id. But, in “unusual or extraordinary circumstances” a statute limiting attorney fees in criminal cases “interferes with the sixth amendment right to counsel,” a “sensitive area of judicial concern,” and “therefore violates article V, section 1, and article II, section 3 of the Florida Constitution.” Id. When inadequate compensation stops attorneys from taking death penalty cases, “the availability of effective counsel is therefore called into question in those cases when it is needed most.” Id.

  1. Medical Malpractice Lawsuits

Although there may very well be legitimate, even admirable goals in imposing limitations on attorney fees, such action can also create problems overlooked when laws were enacted. Similar to how statutes limiting attorney fees in criminal cases can lead to unavailability of counsel for defendants, limiting contingency fees in medical malpractice lawsuits can have an analogous practical effect for claimants. Contingency fees play a large role in a claimant’s ability to access the courts because such fees allow plaintiffs to bring lawsuits they otherwise would not be able to afford to litigate. Michael Cristoforo, Medical-Malpractice Contingency-Fee Caps: A Big Victory for Florida’s Voters and Tort Reformers? Maybe Not., 62 U. Miami L. Rev. 913, 919 (2008). Restricting contingency fees can limit a claimant’s ability to find adequate counsel to represent them because “the prospective damages and resulting attorney’s fees will not justify the time and expense associated with the litigation.” Id. at 920. Between the noneconomic damage caps and limit on contingency fees, lawyers are more apt to take cases where high economic damages can be shown. Id. Such heavy restrictions would appear to particularly harm those who cannot demonstrate large economic losses, such as “the poor, senior citizens, unemployed women or stay-at-home moms, students, and children.” Id. at 921.

In 2004, Florida’s Constitution was amended through the citizen initiative process, resulting in Amendment Three being adopted to limit contingency fees in medical malpractice actions. Eric S. Matthew, A New Prescription: How A Thorough Diagnosis of the “Medical Malpractice” Amendments Reveals Potential Cures for Florida’s Ailing Citizen Initiative Process, 14 U. Miami Bus. L. Rev. 331, 333 (2006). Under article I, section 26 of the Florida Constitution, in any medical malpractice lawsuit involving a contingency fee, an attorney can receive no more than 30% of the first $250,000 awarded to a claimant, and only 10% of all damages exceeding $250,000. Fla. Const. art. I, § 26. Significantly, article I, section 26 does not limit the amount that the defendant may pay an attorney to defend against a malpractice claim. On its face, the constitutional amendment protects the claimant’s ability to obtain proper relief for their injuries. Yet, the practical effect is that limiting attorney fees is just another hoop for a claimant to jump through in order to get into the courthouse and seek compensation for their injuries.

The citizen initiative process allows special interest groups to directly amend the Florida Constitution without going through the legislative process. Id. at 332. In essence, it eliminates the system of government checks and balances, putting the power to amend the Florida Constitution directly in the hands of the voters. Id. Although various stakeholders have an unquestioned influence on legislative enactments such as noneconomic damage caps, the citizen initiative process allows those same special interest groups to influence the general public directly, and with potentially unlimited resources. In fact, the battle between trial lawyers and medical interests over getting Amendment Three on the ballot and passed into law has been estimated to cost in excess of $30 million. Mary Coombs, How Not to Do Medical Malpractice Reform: A Florida Case Study, 18 Health Matrix 373, 386 (2008). Amendment Three was entitled “Claimant’s Right to Fair Compensation.” Id. To the average voter, the message that the injured party should get the majority of their damage award was easy for the Florida Medical Association and others to make. Id. at 386-387. For opponents of Amendment Three, it was much more difficult to convince the voters that limiting contingency fees could actually keep claimants out of court, since the amendment on its face would seem to only impact claimants positively. Id.

Ultimately, what has ended up happening is that claimants seeking counsel in medical malpractice lawsuits have waived their constitutional rights under article I, section 26 in order to obtain counsel. Id. at 390. As interpreted by the Florida Supreme Court, a literal read of article I, section 26 creates a constitutional right meant to benefit a plaintiff in a malpractice action, and like any other fundamental constitutional right it can be waived. Id. So, despite the valuable time and resources expended in fighting over Amendment Three, its practical effect has been negligible. Id. at 390-91. Furthermore, the client’s freedom to contract with an attorney to agree on fair compensation for adequate representation should not be easily disturbed. An injured client’s medical malpractice claim can be a significant event in their life, and a claimant should not be limited in deciding the quality of representation they desire based on statutory limitations in how much they can offer an attorney. But, as the history of tort reform legislation in our state and beyond has demonstrated, the law is never settled and surely there will be a continued effort to see contingency fees limited in order to reduce and eliminate malpractice damage awards.

V.         Conclusion

The right for Florida’s citizens to access the courts is guaranteed by the Florida Constitution and has been protected by the courts. As case law suggests, the courts give great respect to such a fundamental right. But legislative action which infringes on the right to access the courts is not per se invalid. Florida courts use the Kluger test to determine whether laws infringing on the right to access the courts nonetheless should be allowed.

Specifically, in medical malpractice suites, tort reform measures may not be in the best interest of a potential plaintiff. By looking at the interplay between the tort reform measures that have been enacted, it is clear that strong burdens are placed upon a plaintiff trying to bring a medical malpractice lawsuit. Arbitrarily capped noneconomic damage awards and limited contingency fees for attorneys provide significant obstacles for a potential claimant attempting to bring a medical malpractice lawsuit. Limited damage awards and attorney fees can create a situation where it is not worth it for either the patient or an attorney to pursue a malpractice claim, even when liability could easily be demonstrated.

The courts have continued to defer to the legislature on issues of tort reform related to medical malpractice lawsuits. However, the blame does not belong solely with the courts. The issue is much deeper than that. Public policy arguments are, by the design of our constitution, left up to the legislature and the democratic process. Unfortunately, unlike the courts, the legislature is burdened by special interest groups whose political clout is undeniable. As the policy debate continues, stakeholders including trial lawyers, medical associations, doctors, and insurers will be the ones who ultimately decide how to best deal with the undoubtedly complicated issues surrounding medical malpractice.

Our current medical malpractice system effectively subsidizes smaller malpractice claims by limiting damage awards to those most severely injured. Essentially, the system in place imposes limitations that weed out malpractice claims, both valid and invalid, by placing significant burdens on claimants trying to bring suit. At the same time funds of those claimants whose noneconomic damage awards should be highest are reallocated to those with smaller claims, along with the various stakeholders involved. Although there are justifications and issues on both sides of the tort reform argument, I believe that ultimately severely injured parties have to pay too high a price in order to facilitate a speculative benefit to those with smaller claims.

 

Mark Perenich has been practicing law for over 30 years, he has invaluable experience when it comes to medical malpractice. If you believe that you have a malpractice claim call him today 727-386-9677

Evidence destroyed? Do I still have a case?

What happens when evidence is destroyed in a case?

Spoliation of Evidence: what is it and what can you do about it?

Mark Perenich is a personal injury lawyer in Clearwater he has more than 30 years experience with various cases from Car accidents to Medical malpractice.

What is ‘spoliation’ of evidence?

Spoliation is the alteration, destruction or loss of evidence which is involved in litigation.

What example can be given of spoliation of evidence?

A creditor who is suing for the payment of a sum of money on a contract has in his safekeeping the only copy of the contract which was signed by the debtor. If during discovery or litigation the debtor’s lawyer borrows the only signed copy of the contract and loses it when his briefcase is taken by a mugger, there is spoliation of evidence. If the office of the debtor’s lawyer burned down to the ground, the contract is destroyed by fire; there is also spoliation of evidence. If the contract which was in the office safe was not destroyed in the fire but the ink was smudged due to water damage so that the contract’s contents are illegible, then there is also spoliation of evidence as it was altered.

What is the effect of spoliation of evidence?

When an object which is supposed to be presented as evidence is spoliated it is not only destroyed, altered or lost, it becomes unavailable for a party to use to prove his claims. Depending upon the importance of the evidence to the litigation and depending upon the good or bad faith of the party who lost it, the party who was disadvantaged by the loss, alteration or destruction of the evidence is given the recourse of suing the spoliator – he may also be sanctioned by the court.

Is the loss, alteration or destruction of all kinds of evidence sanctioned?

No, the evidence must be key evidence and it must be essential to the subject of the litigation. In the example above, the contract is a key piece of evidence and essential to prove the creditor’s claims. The creditor is disadvantaged because the contract which was reduced to writing is the best evidence of the particulars of the agreement between him and the debtor. The signature of the debtor is the best evidence that he has agreed to be bound by the agreement. Unless the creditor can prove the contents of the agreement through a photocopy or by an exchange of letters or emails between the creditor and the debtor, he will not be able to prove his claims.

Wrongful Death Stautes

What kinds of sanctions can be imposed on the spoliator?

In the example above, the debtor may claim that sum of money the creditor was suing for should not be paid as he had not delivered the goods in exchange for the sum of money. The pleadings or documents filed in court by the debtor to prove his alternative defense of non-delivery of goods may be stricken from the record.

If the debtor filed a counterclaim in damages against the creditor, his counter claim may be dismissed. If the debtor assailed the genuineness of his signature on the document and presented the testimony of a handwriting expert, the expert testimony based upon the missing or destroyed evidence may be stricken from the records. The debtor may be declared to be in default and will therefore lose his right to present his own evidence. Or, an evidentiary presumption may rise against him.

What happens if the spoliation is inadvertent or accidental?

In determining the sanction to be imposed, the court takes into consideration not only the importance of the evidence to the subject of the litigation but also the motives of the spoliator. Bad faith is when the party deliberately destroyed or altered the evidence to deprive the opposing party of his right to prove his claim.

In the example above, the debtor’s lawyer lost the document because he was mugged and the contents of his entire briefcase was taken by the mugger. Unless the story of the mugger was fabricated, it cannot be said that the loss of the copy of the contract was intentional, deliberate or calculated to deprive the creditor of his just claims. There can be no bad faith attributable to the debtor’s lawyer.

What are evidentiary presumptions and how do they work as sanctions?

There is a saying that evidence withheld is presumed to be unfavorable if produced. That is to say when bad faith attended the loss, destruction or alteration of an essential piece of evidence, the court will deem the loss, destruction or alteration of the evidence to have been accomplished because it was unfavorable to the spoliator.

In the example above, if bad faith on the part of the debtor or the lawyer is shown, the court will deem that the debtor or lawyer destroyed, lost or altered the contract because if it had been produced in court, it will be adverse evidence against the debtor.

Why is spoliation sanctioned?

Imposing sanctions on the spoliation of evidence in bad faith maintains the integrity of the court system. If such acts were not sanctioned, any person can defeat claims against him by simply destroying evidence. Also, the court has an interest in seeing that evidence is preserved because courts cannot decide cases if evidence goes missing or is destroyed. Missing evidence delays the disposition of cases by the court.

In the example above, lawyers are officers of the court and they have a duty and accountability before the court to maintain the integrity of the legal processes. They are supposed to maintain fair play in their dealings especially in keeping documentary evidence safe.

If you have any questions about this or any personal injury case please contact Mark at 727-386-9677

Do I need a minimum amount of insurance in Florida?

 Mark Perenich is a personal injury lawyer in Clearwater Florida, he has been practicing law for over 30 years, he understands what most people do not know about Florida law.  The problem is that we really don’t need ask these things until it’s too late, so here is a short overview of  Florida’s financial responsibility law.

What is Flordia’s Financial Responsibility? Or What is the Penalty for Not Having

The term Financial Responsibility is usually associated with motor vehicles and is a sort of legal obligation imposed by law on motor vehicle or property owners. The Financial Responsibility law seeks to protect people who have claims against a particular motor vehicle or property owner for accidents associated with the motor vehicle or property. The law lays down an obligation on an owner of property to prove that he or she is capable to pay damages, in case an accident takes place because of his motor vehicle or property. The proof of financial responsibility does not go away only because of the fact that a particular owner of property has insurance coverage for accident or is at no fault but is an obligation independent of the two. All states in the U.S. do not have compulsory insurance law but they do have financial responsibility law which lays down an obligation on insurance policy holders to comply with financial responsibility norms in addition to the obligation of getting insured.

Do I need a minimum amount of insurance in Florida?

Financial responsibility Law is the legislation and mechanism used by the state of Florida to encourage vehicle owners to maintain financial protection for themselves as well as any other drivers on the road. The law of financial responsibility in Florida is enacted in Chapter-324 of Title XXIII of the Florida Statutes.

In Florida a vehicle owner must get car insurance at a minimum $10,000 to cover bodily injury or death of one person through one motor vehicle accident and $20,000 to cover two or more persons. A minimum of $10,000 insurance must be purchased to cover for property damages. This rule applies to all individuals who own a car for the past 90 days in the preceding year and are either employed in Florida, resides in Florid or have children in a school in Florida. At all times the owner or registrant of the vehicle must carry proof of insurance.

Car accident Clearwater

 

Establishing Financial Responsibility in Florida

There are various ways to establish and insure financial responsibility in Florida by obtaining a certificate of Financial Responsibility from the Bureau of Financial Responsibility (BFR) which is mentioned below:

• By posting a surety bond with a state licensed company and obtaining a Financial Responsibility Certificate from BFR

• By providing evidence of possessing a net encumbered capital and obtaining a Self Insurance Certificate from BFR

• By depositing cash or securities with Florida Department of Highway Safety and Motor Vehicles and obtaining a Certificate of Financial Responsibility from BFR

In addition to these three ways, a person can establish Financial Responsibility by purchasing a commercial insurance policy from a carrier licensed to sell insurance policy in Florida.

Proving Financial Responsibility in Florida

Financial Responsibility in Florida can be proved in the following ways:

• Showing proof of Financial Responsibility Certificate from the Bureau of Financial Responsibility.

• Showing proof of Self-insurance Certificate from the Bureau of Financial Responsibility

• Showing proof of Self-Insurance Certificate from the Bureau of Financial Responsibility

 

Enforcement mechanism for Financial Responsibility adopted in Florida

A driver or motorist must furnish evidence of Financial Responsibility upon request of law enforcement authorities. In roadside traffic stops police officers usually ask for proof of insurance however they have Personal injury lawno authority to stop a vehicle only for checking their insurance documents. A citation is issued to the motorists who are unable to show proof of insurance and in that case the owner has to show proof of insurance in court.

Any motorist involved in any crash must produce evidence of insurance at the scene. In case a driver is unable to submit proof of insurance at the time of the accident, the driver is granted a period of 30 days for submission of evidence. If a vehicle owner is still unable to produce evidence a notice shall be generated approximately 120 days after the crash. If injury occurs to any person at the time of the accident, the vehicle owner must furnish proof of bodily injury coverage on the date of the crash.

Penalties for Failure in establishing Financial Responsibility

Owners who do not establish Financial Responsibility and thus unable to provide proof of Financial Responsibility can face suspension of registration, license plate, driving privileges in addition to payment of reinstatement fees as per Florida law.

If an out-of-state vehicle owner gets involved in a crash and is uninsured, his driving privilege is suspended until the victim of the accident is compensated.

 

If you have any questions about you car insurance, or Florida’s financial responsibility law please contact Mark Perenich at [email protected] or by calling 727-386-9677

Safety while on the shoulder of the road

Road Site Accidents

Mark Perenich is a personal injury lawyer in the Clearwater, Tampa, St Pete area, he knows how congested and busy the road get.  If you have to pull over please use caution, may accident

In a gruesome and sad accident on 13th July, Hudson based Terry Maurice Edwards, 72 and Zephyrhills based Kenneth Michael Demmith, 29 died after surviving a crash of their vehicles, when a 3rd vehicle driven by Hudson based John Lindsay, 59 slammed into them.

At about 9:10 P.M. on the evening of 13th July Mr. Edwards was headed on Hudson Avenue west of Edwards Road in a 1996 Chevrolet Silverado pickup. At the same time, Mr. Demmith was headed west on the same road in his Lifan G20-5 motorcycle, riding without a helmet.

When the truck and the motorcycle were close, Mr. Edwards took a left turn into a private driveway at 11029 Hudson Ave. While doing so, he came into the path of the motorcycle being driven by Mr. Demmith, which stuck the back of the truck and spun. This caused Mr. Demmith to be thrown onto the road.

Mr. Edwards stopped his truck and got out to check on Mr. Demmith. That’s when a 2007 Chevrolet Silverado driven by Houdson based John Lindsay, 59 was headed east on the same road. The truck driven by Mr. Lindsay stuck Mr. Edwards and Mr. Demmeith, killing both on the spot.

Even though alcohol wasn’t a culprit in wither of the crash, this incident is a chilling reminder of how small acts of negligence on the part of drivers can add up to cause a fatal accident. The blame can’t be attributed to a single driver or a single act. There was negligence on part of everyone involved in the accident. Negligence on part of Mr. Demmith in not using a helmet while riding his motorcycle, negligence on part of Mr. Edwards in attempting to take a turn while another vehicle was so close and negligence on part of Mr. Lindsay who must have been driving at such speed, making it impossible to stop the vehicle in a short interval of time.

 

Keeping Safe While Driving

Highway safety, driving safe, DUI etc. are all stuffs which are taught to individuals right from their schools, not to forget the numerous billboards and flyers that constantly remind you of keeping yourself and other drivers safe while driving. Still, there are a lot of people who either don’t take safe driving seriously or don’t pay much importance to the precautions they must ensure while driving. Most of the accident happens because of human fault rather than a problem with the machine. Let’s look at some of the most common reasons that causes accidents on the highway and how to prevent them-

 

  • Seat-Belt – The first and most important thing while you get inside your car is to buckle up your seat-belt, no excuses. Yes even though that’s the most basic rule that is repeated often, yet a lot of people don’t abide by it.
  • Keep a safe Distance – Most drivers forget to take into account the time and distance it will take them if they have to stop their vehicle all of a sudden. Doesn’t matter where you are riding, on the highway or in the city, maintaining a safe distance ensures you can remain safe in emergency situations when you have to apply those brakes all of a sudden.
  • Honor the Road Signs – The signs mentioning speed limits, STOP signs and others posted alongside the highways or roads are put there for a reason. Honoring the speed limit can ensure that you are safe even in unexpected situations. Similarly, a STOP sign is for you to be cautious, stop the vehicle, and check both sides of the road before moving ahead.
  • Mirrors- Most people get inside their cars and don’t bother to check the mirrors. Yes, we are talking about rearview mirrors and side mirrors. Adjusting these mirrors according to your preference, such that they give you a good visibility of the vehicles right behind you and adjacent to you, helps you in navigating your way properly on the roads. Without creating any kind of disturbances for your fellow riders and safeguarding you from accidents.
  • Don’t use Gadgets – Even though most states have enacted laws against using your smartphones and other gadgets while driving, some individual don’t take them seriously and disobey the law. These laws have been enacted for a reason; even when there isn’t a law regarding usage of devices one must cautiously avoid using them. Whenever you are distracted by something else other than driving, you are basically giving accident a chance to happen.
  • Shoulder of the road MUST be used for Pulling Over – No matter what the situation is, never stop your car in the middle of the road. If you think there is something wrong with the vehicle or there has been an accident, pull over only at the shoulder of the road. This way you don’t create an obstacle for other vehicles driving on road, especially those who are moving at high speed and will have problems navigating in a short notice.

Though some of these rules apply to Motorcycles as well, Motorcycle riders need to drive with extra caution, owing to the fact that their vehicles have to be ‘balanced’ while riding, a shortcoming cars and other four wheelers don’t have and also the fact that they don’t have a shield in the form of the outer body of a vehicle that can safeguard them from suffering severe injuries, again a shortcoming that four wheel rides don’t have. Here are a few safety tips that specifically apply to motorcycle riders-Motor bike

  • Helmet is Your Best Friend – Regardless of how many times this advice has been repeated, it doesn’t takes away the significance of using a helmet. A lot of states have enacted helmet laws but still that doesn’t prevent a lot of motorcycle riders from riding without a helmet. In the event of a crash, the only thing preventing you from getting severe brain injury is that helmet.
  • Protective Gear – These constitutes of gloves, boots, jackets etc. that must be used while riding a motorcycle. These protective gears are the only shields that protect your skin from coming in direct contact of the road, when an accident occurs. Protective gears that safeguard your elbows, shoulders and knees reduce the chances of fractures, broken bones and tendons in the event of a crash.
  • Navigating the Curves – Single vehicle accident at turns and curves is too prominent among motorcycle accidents. Most of these accidents happen because the rider runs wide on the curve due to speeding, under –cornering or a fall caused by over braking. One must make sure to navigate a curve or turn with as slow speed as possible.
  • Don’t be an aggressive rider – A lot of motorcycle accidents happen only because the rider was driving too aggressively, trying to overtake everyone and everything, slip through every corner of vacant space. Riding a motorcycle with confidence is a different thing than riding aggressively. While driving its very important to respect the other riders too and keeping a calm demeanor.

 

If there was something I missed please feel free to contact me here

Mark Perenich is a personal injury lawyer in Clearwater with over 30 years of experience.

Bike hit by a car?

Bicycle Accidents

Mark Perenich has handled numerous accidents where a pedestrian on a bike was hit by a car. These are very unfortunate accident be sure to chose an attorney with the skills and qualifications to help you.

 

Look at this guy, he was in a bike accident. Probably hit by a car, not a good time. He needs a personal injury lawyer NOW!
Look at this guy, he was in a bike accident. Probably hit by a car, not a good time. He needs a personal injury lawyer NOW!

I would first off like to say: if you are riding you bike, PLEASE wear a helmet. If you do not have one check back as I will be giving one away.

 

What To Do When Your Bicycle Is Hit By A Car

More and more people are riding their bikes on a regular basis. You may be one of the millions that have taken to the streets with one of these, and you’re in danger. There’s an inherent danger when you’re trying to share the road in a legal manner, because there are motorists that will try and side swipe you and cause you a great deal of headache. You’ll find that without the help of a highly motivated bicycle accident lawyer, you could end up dealing with a lot of problems associated with getting hit. From paying for your medical bills to buying a new bicycle, you’ll find yourself in a world of issues that you may not be ready to deal with.

Hiring a Lawyer For Protection

When looking for a bicycle accident lawyer Clearwater, you will not just be doing it for the purpose of getting monetary compensation, you will be getting protection against the violations of your rights. As a bicyclist, you have rights that other motorists may have. If you’re struck by a vehicle, and you go down, they have committed a criminal act if they decide to run off. Not only that, they are liable for your damages and medical bills. If they stop and throw money at you, or they speed off, make sure that you hire a lawyer immediately. Not only that, you want to protect yourself against frivolous lawsuits.

Some motorists will try to say that the accident was your fault, and will even sue you for damages that they incur on their vehicle. This may be a problem on many levels, and the last thing you want to do is try to fight it on your own. With a bike accident or even a pedestrian accident, rights can be violated swiftly so be careful.

Getting Back on Your Bike

Getting back to your routine, riding your bike, and trying to live your life on your terms after an accident is going to be difficult. However, it is not something that is impossible, or should cause you any sort of distress. Making sure that you are able to heal, and get back on your bike, back to work, and live your life according to your terms is something that can be done with the help of legal, and medical professionals.

It’s easy for others to try and trample all over your rights. This is especially true when many legal teams try to fight to get money from innocent victims. Don’t allow anyone to trample your rights or steal your money, get protected and helped with an attorney that specializes in bicycle accidents and injuries. You will find that with a helping hand, you can fight back, and get your medical bills covered, and then some. There’s no reason why you should fight alone, or feel like you’re alone out there. There is hope for a brighter future, and it is found with the assistance of a legal team that will have your back.

What you need know about Contracts

Everyone needs to know about contracts, if you’re reading this you have probably entered into numerous agreements giving away rights you didn’t know you had. I want to help educate the public about contract law and what you need to know to protect yourself. This guide is not meant to replace a lawyer, if you are in serious contractual negotiation, you should always consult a lawyer: Sure you might spend $200-$5000, but it could save you $5000-millions of dollars. If you have any questions please call or email me.

What you need to know about Contracts

law books

Is it a contract or agreement?

Contract and Agreement are two terms which are commonly used interchangeably by many people, who don’t understand the significant difference between the two. Though as a figure of speech it doesn’t makes much of a difference in normal life but mistaking one for the other can prove costly, especially when it comes to monetary affairs. People with dubious intentions have been known to exploit to their advantage the ignorance of common people in confusing one term for the other. That’s why it is so very important to understand both the terms as well as to always consult a qualified attorney before signing anything important.

Agreement is a very generic term. When two or more parties have a mutual understanding between them about their relative rights and responsibilities, it is called an Agreement. The meeting of minds at a certain point is how most institutions define an agreement. An agreement can be on anything, from business views to domestic views. In an agreement, the parties define the terms and condition of the agreement by themselves.

What is a Contract?

A contract can be defined as a legally binding agreement between parties which creates obligations that are enforceable. Though it can be said that every contract is basically a legal agreement, not all legal agreements are contracts. A legal agreement must fulfill certain conditions, which make it enforceable, so that it can be termed as a valid contract.

Conditions that an agreement must fulfill, to be considered a Valid Contract –

  • Offer & Acceptance – An agreement must contain an offer made by a party and the acceptance of that offer by another party, or a counter by the other party in case it doesn’t accepts the original offer.
  •  Mutual Consent – Both parties must be on the same page when it comes to the terms and condition and get into the agreement on their free will, without being forced into it.
  • Consideration – Anything of value that is exchanged between the parties is called as ‘consideration’. Consideration can be goods, service, promises, act or money. In order to be a valid contract, an agreement must include ‘consideration’.
  • Legal purpose – The agreement shall be made only for legal purposes. One cannot contract for activities which are illegal or impossible.
  • Capacity/Competence – To enter a contract, all the parties must be of ‘sound mind’ i.e. the parties must not be minors (for most contracts), must not be under influence of any substance and must not be mentally deficient.

Can contracts be oral? What is the “statute of frauds”?

Barring a few exceptions both verbal and written agreements are considered contract in Florida if they fulfill the above mentioned criteria which make them binding and legally enforceable. Apart from those contacts which are specifically required under Florid law to be in writing, oral contracts, especially those in which a party fulfills its obligation(s) are enforceable in Florida.

Though oral contract are enforceable, their details are fairly hard to prove in a court of law when compared to a written contract. That’s why it’s always advised to have a written contract instead of an oral one. Certain written contracts in Florida are required to include the agreement between parties on specific issues. Even otherwise, a written contract must specify the terms and conditions of the agreement between two parties in great detail, so that there is little room for disputes to arise.

Limitations

One would have encountered terms like ‘liquidated damages’, ‘consequential damages’, ‘court costs’ etc. while going through a contract. Most of the people while getting into a contract don’t pay much importance to these ‘legal’ terms, only when it’s too late and a breach of contract occurs that an individual realizes the kind of limitations they place and their consequences.

Most of the ‘business’ contracts drafted nowadays contain limitations. The limitations can be for different things like limiting the amount of damages that an injured party can seek if a breach of contract occurs, limiting the jurisdiction to a specific court/ county in which a lawsuit can be filed if a breach occurs, limiting a party’s right to recover lawyers fee and other associated litigation cost when a dispute arises etc. It’s very important that before signing or drafting a contract one consults a lawyer to understand or specify the terms and conditions in the contract. Clauses regarding consequential, special or liquidated damages must be thoroughly understood BEFORE getting into a contract as they may severely limit your right to seek adequate damages (compensation), in case the other party breaches the contract.

 Can I cancel a contract

Cancelling a contract comes with its own set of difficulties. While most contracts can be cancelled if the parties involved give their consent for cancellation, some contracts come with ‘right of rescission’ which gives a party the right to cancel a contract, subject to certain procedures or conditions. If a contract contains the right to recession, one has to follow the exact guideline, timeframe and procedures mentioned in the contract regarding cancellation. In such cases, it’s best to take help from a qualified lawyer, or else the cancellation could be considered invalid if not done according to the specifications.

Time Limitation for filing Lawsuits

When a party breaches a contract or terms of a contract, the non-breaching party must file a lawsuit within the prescribed timeframe to enforce the contract, or else the Courts in Florida may not allow filing of the lawsuit. According to Florida laws, a lawsuit must be filed within 5 years of the date when a written contract was made, in order to enforce it. In case of verbal (oral) contracts, the timeframe is of 4 years. The above mentioned timeframe does not apply to each and every case, in some cases the timeframe for filing a breach of contract lawsuit can be as little as 1 year.

 Difference between Arbitration or Lawsuit

Arbitration is a procedure in which parties having a dispute over a contract, resolve it outside court and the decision is made by an ‘arbitrator’ instead of a Judge or Jury. The contracts which require a dispute to be solved through arbitration include an ‘arbitration clause’ specifically stating it. By signing a contract that has an arbitration clause, an individual basically gives up their right of resolving a dispute through a court of law. Even otherwise, arbitration in contractual disputes is generally more expensive than resolving a dispute by filing a lawsuit. One must be cautious and evaluate all options before signing a contract with an arbitration clause.

Due to the significance of contracts and consequences one can face due to breaches, the Supreme Court of Florida bars non-lawyers from drafting most of the important contracts. To ensure that your rights are always protected it’s always beneficial to have a contract drafted by a skillful lawyer. Even when an individual is entering an already written contract, consulting a lawyer before signing it can ensure that one’s rights are protected, in case a dispute ever arises.

If you have a question about contracts, contract law, or personal injury law: please contact Mark Perenich today.  He has been practicing personal injury law for 30 years.