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Earlier this year, one state’s supreme court had the occasion to discuss and adopt the continuing course of treatment doctrine in a medical malpractice case. In the case Parr v. Rosenthal, the court adopted the doctrine, which holds that a medical malpractice claim does not accrue for the purposes of the statute of limitations until the defendant doctor stops treating the plaintiff for the condition giving rise to the lawsuit. However, the plaintiffs were ultimately unsuccessful in their case because, although the court adopted the doctrine, the court also determined that the plaintiffs’ case was not a proper application of the doctrine.

Alarm ClockThe Facts

The plaintiffs were the parents of a young boy who was born with a large bump on the back of his leg. After several years of trying to figure out what the bump was and whether it was potentially harmful to their son, it was diagnosed as a desmoid tumor. The plaintiffs were referred to the defendant doctor who was experienced using a novel technique called radio frequency ablation to treat tumors, however, he had never used the technique on a desmoid tumor.

The plaintiffs agreed to have the defendant operate on their son. However, during the operation the boy was badly burned and the procedure could not be completed. The boy was treated by other doctors within the defendant doctor’s practice group, but the defendant was not involved in any of the boy’s follow-up care. Ultimately, the boy’s leg became infected and he needed to have his leg amputated above the knee.

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Under Florida law, all personal injury cases must be brought within a certain amount of time. Normally, this time frame is called the statute of limitations, and while there are some exceptions, the general rule is that a late-filed case cannot be heard by the courts, and the plaintiff will be without recourse for their injuries. While this concept is a straightforward one, determining which statute of limitations applies in a specific case is not always an easy task.

AmbulanceDifferent types of cases have different statutes of limitations. One of the strictest statutes of limitations is for medical malpractice cases. In many states, including in Florida, the statute of limitations in a medical malpractice case is two years. Compare that with the statute of limitations for general negligence cases, which is four years, and it is clear why it is important to determine at the outset which statute of limitations applies. Below is an example of one plaintiff’s experience bringing a traditional negligence case against a paramedic that initially was classified as a medical malpractice case.

Aldana v. Stillwagon:  The Facts

Stillwagon, an on-duty paramedic, caused an accident when he struck Aldana’s vehicle after running a red light. At the time, Stillwater was on his way to the medical emergency. Aldana filed a personal injury lawsuit against Stillwater 17 months after the accident, arguing that his negligence in running the red light caused his injuries.

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Insurance contracts can be confusing. Often, the party purchasing the insurance only reads the “declarations” page, which is only a very brief overview of what their coverage entails. However, the actual insurance contract itself is often much longer and much more complicated, and it may even contain seemingly contradictory clauses.

Farm TrailerWhen an insurance contract contains a clause that seems contradictory, the court system often must step in to resolve the conflict if the insured and the insurance company cannot agree. In most cases, if the court determines that there are contradictory terms, the conflict will be resolved in favor of the insured. However, the plaintiff does have the initial burden to prove that a contradiction exists. If no contradiction exists, the court will likely interpret the contract as it was written, even if this seems unfair because the insured thought that they were entitled to more coverage. A recent case decided by a federal court of appeals illustrates how a court may be asked to make a final interpretation of an insurance policy.

ACE Fire Underwriters v. Romero

Romero was the executor of an estate belonging to a man who was killed after he was involved in a tractor-trailer accident. There was no dispute that the operator of the tractor-trailer was at fault. However, since the accident was caused when the tractor became disconnected from the trailer, the issue arose of what the insurance pay-out limit was. Specifically, Romero claimed that it was $2 million, $1 million for each of the two vehicles involved. The insurance company, on the other hand, claimed that the policy maximum was $1 million, regardless of how many vehicles were involved.

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Earlier this month, the Nebraska Supreme Court issued a written opinion in a premises liability case, dismissing the plaintiff’s claim against the defendant grocery store because the plaintiff failed to present sufficient evidence that the defendant caused, or even knew of, the dangerous condition that precipitated her fall. As a result of the court’s decision in the case, Edwards v. Hy-Vee, the plaintiff will not be entitled to recover compensation for her injuries.

Slice of WatermelonA Woman Slips and Falls on a Piece of Watermelon

Edwards slipped and fell on a piece of watermelon as she was leaving a grocery store that was owned and operated by Hy-Vee. After Edwards got up, she not only noticed that there was a watermelon seed stuck to the bottom of her shoe but also noticed that there was a store employee handing out free samples near the store’s exit.

After recovering from her injuries, Edwards filed a premises liability lawsuit against Hy-Vee, alleging that the store was negligent for either causing the dangerous condition to be present in the first place or failing to clean up the condition.

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The United States Tenth Circuit Court of Appeals recently released an opinion affirming a federal district court’s decision to award a Colorado accident victim a $2.25 million verdict against his auto insurance company. The plaintiff had initially sought only the $750,000 policy limit for the uninsured motorist coverage purchased from the defendant, but his successful claim that the defendant unreasonably denied his initial claim resulted in a judgment three times that amount. With the Tenth Circuit’s decision to affirm the lower court’s rulings, the plaintiff will receive the $2,250,000 he was awarded by the trial judge.

Damaged Front EndThe Plaintiff Suffered a Serious Back Injury after He Was Rear-Ended by an Underinsured Driver

The plaintiff in the case of Etherton v. Owners Insurance Company was injured in a rear-end collision in December 2007. Although the damage to his vehicle was relatively minor, he suffered a back injury in the accident and underwent three back surgeries to repair disc damage in his spine. The plaintiff initially sought damages from the driver at fault for the accident and received the policy limit amount of $250,000 in compensation from the other driver’s insurance company.

The Plaintiff’s Initial Insurance Claim with the Defendant

The plaintiff’s insurance coverage with the defendant included uninsured/underinsured motorist protection and covered additional uncompensated expenses from an accident with an uninsured or underinsured driver up to a maximum of $1,000,000 (including any amount received from an underinsured motorist). The plaintiff made a claim under this coverage and requested $750,000, his policy limit minus the amount he’d received from the other driver. The defendant denied the plaintiff’s claim, offering only to pay $150,000, one-fifth of his requested amount. After negotiations stalled, the plaintiff filed a breach of contract lawsuit, seeking damages in the amount of his policy limits.

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Although it may come as a surprise to cautious and safe drivers in the state, a recent auto insurance industry report claims that Florida drivers are the worst in the country. The report was based on a review of various data from the National Highway Traffic Safety Administration, and it considered the percentage of insured drivers in each state, the number of DUI arrests and vehicle-related deaths per 1,000 drivers, and other data. Based on their research, the authors put Florida at the top of the list of states with the worst drivers, followed by Mississippi, Oklahoma, and New Jersey.

Wrecked CarHow the Findings Correspond with Auto Insurance Costs and Coverage across the Country

The findings that Florida drivers are the worst in the nation would suggest that the chances of being in a dangerous accident are greater in Florida than in other states. Although insurance rates are not determined entirely by the state-by-state accident risk or the presence of poor drivers, the article notes that auto insurance premiums in Florida are the fifth-highest in the nation, significantly more expensive than the national average. As noted in the article, the expensive rates and other factors have resulted in Florida having the second-highest rate of uninsured drivers in the country. Concerned South Florida drivers should ensure that they are adequately protected in the event of an accident with an uninsured or underinsured driver.

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Earlier this month, a federal appellate court issued a written opinion in a product liability case, holding that a new trial was not warranted because any questionable evidence that was admitted by the trial judge had only a speculative effect on the jury’s verdict. In the case, Coterel v. Dorel Juvenile Group, the court skipped analyzing whether the evidence at issue should have been admitted, and it focused only on the effect that it had on the jury. Since the court determined that the plaintiff failed to prove that the jury relied on the evidence in question, the court held that even if the evidence were improperly admitted, a new trial was not warranted.

Open Door

The Tragic Facts of the Case

The Coterels were given a door-knob guard manufactured by the defendant as a gift. The guard was designed to prevent young children from unlocking doors and getting out of a home unsupervised. On the day in question, the Coterel’s young son successfully negotiated the door-knob guard, escaped from the home, and drowned in a nearby pond. The Coterels filed a product liability case against the defendant manufacturer, alleging that the defendant’s dangerous product caused their son’s death.

At trial, the defendant manufacturer wanted to provide the court with evidence that the Coterels knew that their son had successfully disengaged the door-knob guard in the past. The defendants also had evidence that the parents normally locked the deadbolt in addition to using the door-knob guard, but on the day in question they forgot to lock the deadbolt. This evidence was obtained in post-incident interviews with the Coterels that were unrelated to the personal injury lawsuit.

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Earlier this month, a state appellate court issued an opinion in the case of Vasilenko v. Grace Family Church. The case was brought by a parishioner against the church after the parishioner was seriously injured in a pedestrian accident when attempting to walk from a church parking lot to the church. The court determined that, although the injury in a premises liability lawsuit must normally arise on the property owner’s land to be successful, that isn’t always the case.

City StreetThe Facts of the Case

Grace Family Church was located on a busy five-lane road. Immediately next to the church was a parking lot. However, since the parking lot was small, it would often fill up. To accommodate the growing demand for parking spaces, the church contracted with a nearby business owner to use his parking lot as an overflow lot when the smaller main lot was full.

The church had volunteer parking attendants who would direct traffic from the main lot to the overflow low when the main lot was full. There were also parking attendants in the overflow lot, showing parishioners where they could park. Importantly, however, there were no attendants to help the parishioners cross the street to get to the church.

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The Iowa Supreme Court recently released a decision affirming a lower court’s ruling in favor of the government defendant in a wrongful death case that was filed by the surviving family of a 10-year-old boy who was killed in a boating accident on a lake owned by the defendant, the state department of natural resources. The lawsuit alleged that the state agency was negligent by permitting a dredge pipe to be used and stored under the lake’s surface, which was a violation of state regulations and created a hazard for which the state should be held accountable. The most recent appellate opinion ruled that the plaintiff had no claim as a matter of law, and the defendant cannot be held liable for the boy’s death.

Boat DeckA Boy Dies after His Mom’s Boyfriend Ignores Warning Buoys and Crashes into an Underwater Pipe

The plaintiffs in the case of McFarlin v. Iowa are the surviving family members of a 10-year-old boy who was killed in a boat accident on an Iowa lake. According to the facts noted in the opinion, the boy’s mother’s boyfriend was operating a speedboat that the boy was riding in and failed to notice or comply with warning buoys that signaled the existence of a dredge pipe beneath the water’s surface. Instead of slowing down and going around the buoys as intended, the boat operator drove the boat into the dangerous area at about 30 miles per hour, crashing the boat into the submerged pipe. As a result of the collision, the boat’s engine disconnected from the back of the boat and flipped into the passenger compartment of the boat, resulting in fatal injuries to the child.

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In most cases alleging that one party’s negligence caused another party’s injuries, the lawsuit is based on the legal theory of negligence. Before a negligence lawsuit is even permitted to go to trial, a judge must determine that a prima facie case of negligence exists. This is a question of whether, taking all evidence in the light most favorable to the plaintiff, the plaintiff has made out a bare-bones case. If not, the court is proper in dismissing the lawsuit before submitting the case to a jury.

Weathered FenceIn negligence cases, there are four elements that must be met:  duty, breach, causation, and damages. In other words, a plaintiff must establish that the named defendant violated some duty of care that they owed the plaintiff, and the plaintiff was injured as a result of that breach. A plaintiff’s failure to submit proof of any of these elements can result in the court dismissing the case at the summary judgment stage. This is exactly what happened to a husband and wife who sued a local park for damages after the husband injured himself while leaning on a fence.

The Facts of the Case

In the case of Wheeling Park Commission v. Dattoli, the plaintiffs were a couple who were attending a concert at Wheeling Park. The couple arrived too late to find seating for the event, so they ended up standing at the top of a hill near a fence. As the night went on, Mr. Dattoli looked for a place to take some of the weight off his legs, and he leaned against the nearby split-rail fence. However, as he did so, the fence collapsed, sending Mr. Dattoli down the hill. As a result, he injured his shoulder.

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