Tuesday, July 25, 2017

Florida Boating Accidents and Alcohol

When most people think of Florida, they imagine a tropical paradise. Soft, white sand in between your toes, the hot summer sun sinking behind crisp, blue waves, and an ice cold margarita melting in your hand. As residents, we know this scene to be a part of our reality. Florida’s natural beauty, including its extensive coastline, is just one reason why our state is now the 3rd most populous in the US. And that doesn't even take into account the “snowbirds."

It's no wonder then that one of the best ways to appreciate that beauty of Florida is out on the water. Whether it’s by cruising around in a large catamaran or jumping wakes with a jetski, boating is about as Floridian as a glass of fresh-squeezed OJ. But just like the daily 3 PM thunderstorm, there can be some dark clouds on the horizon for boaters.

Over half of all boating accidents are related to the use of drugs or alcohol. Although many of us know the criminal repercussions such a combination may bring, fewer Floridians know the civil consequences that can occur. For example, did you know that such intoxication could prevent you from recovering any compensation in the event of an accident? Florida Statute § 768.36 reads as follows:

768.36 Alcohol or drug defense.
(1) As used in this section, the term:
(a) “Alcoholic beverage” means distilled spirits and any beverage that contains 0.5 percent or more alcohol by volume as determined in accordance with s. 561.01(4)(b).
(b) “Drug” means any chemical substance set forth in s. 877.111 or any substance controlled under chapter 893. The term does not include any drug or medication obtained pursuant to a prescription as defined in s. 893.02 which was taken in accordance with the prescription, or any medication that is authorized under state or federal law for general distribution and use without a prescription in treating human diseases, ailments, or injuries and that was taken in the recommended dosage.
(2) In any civil action, a plaintiff may not recover any damages for loss or injury to his or her person or property if the trier of fact finds that, at the time the plaintiff was injured:
(a) The plaintiff was under the influence of any alcoholic beverage or drug to the extent that the plaintiff’s normal faculties were impaired or the plaintiff had a blood or breath alcohol level of 0.08 percent or higher; and
(b) As a result of the influence of such alcoholic beverage or drug the plaintiff was more than 50 percent at fault for his or her own harm.

Moving beyond the definitions, we see the real teeth of the lurking legislation. In a civil case (such as a water skier suing another boater for running into him), the victim will be barred from recovering any compensation if they meet both factors:

1.      They are impaired by drugs or alcohol
2.      That influence caused them to be more that 50% at fault.

But let’s break those factors down a bit more. Looking to the statutory language of factor number one, we see two ways your Bud Light buddy can be deemed under the influence. The straightforward way is to determine the individual’s blood alcohol content, or BAC. There are many factors which may determine your BAC, some of which include:

·         the amount of alcohol consumed,
·         how quickly it was consumed,
·         how large a person is,
·         how much they’ve eaten recently,
·         if they are in the sun

There are numerous BAC calculators online (for example this BAC calculator), but most law enforcement uses a breathalyzer. Although you can refuse the breathalyzer, it may result in you facing a hefty fine. And it may not even get you out of Factor 1. As the statute states, it’s a BAC of .08 or intoxication to the extent the Plaintiff’s normal faculties were impaired.  This test is much more subjective, and will be evaluated, most of the time, at the scene of the accident.

Factor two will be evaluated at the end of the civil case. It requires the plaintiff to be more that 50% at fault for the injuries as a result of the influence. This determination will be made by the trier of fact in a civil case; i.e. the judge or jury. As such, it’s important to realize that you could get all the way to the end of a case, after years of litigation, only to find out you will get absolutely zero compensation. It should be noted that under Federal Rule of Evidence 403, and Florida Statute 90.403, the jury will not be able to consider this reality in determining how at fault you may be. There’s an inherent bias in knowing 49% will give you millions, while 51% will get you nothing. As such, they will be required to evaluate each parties responsibility based on their conduct, without this playing a role. This is also a subjective test.

Differences Between Boat and Car Insurance

Speaking of winning the battle but losing the war, all civil litigation should consider how a judgment will be collected. A million dollar verdict sounds great until you find out the defendant has less than a dollar to his name. After all, the doctor or boat mechanic will want cash, not a verdict form saying it may one day arrive.

As such, the common way to get compensation will be through insurance. Although many of us are familiar with this concept from our experience on the road, there are some important differences when you get out on the water. For example, there is not a requirement for all boats or their captains to carry insurance. Also, many marine vessel policies have geographical limits on their coverage. Go more than 100 miles out, and there’s no longer coverage. Go to the Bahamas: You’re covered! Go to Cuba: no way Jose! These are important factors to consider moving forward. The last thing you want is to sit through depositions, hearings, and trials just to find out you were 1 beer or 1 mile to deep to get any compensation.

Considering Minors, Alcohol, and Boats

Another factor to consider is the age of navigators out on the water. In the state of Florida, you are able to apply for your captain’s license at the age of 14. And as a Captain myself, I can tell you it’s not as hard as it should be. If an emergency situation presents itself out on the water, what you would do in the book isn’t what you may need to do in the boat. If that young teen makes the wrong move, due to lack of experience, you may be injured as a result. The question will then be, who pays for it? The child? The Parents?

We are seeing just such a situation panning out in the news currently. There was a very tragic event that occurred out of Jupiter, Florida, where two young boys went out alone on a boat. I’m sure when they left the dock, as many of us have, they were both excited and happy to be out on the water. Unfortunately, their trip ended with disaster, and two lives were lost. Now, after an investigation by the Florida Department of Law Enforcement, those families are going to Federal Court over that fateful trip.

When you’re injured out on the water, there are many factors to be considered. From the moment an accident occurs, to the collection after trial, it’s important to have an experienced personal injury attorney with you every step of the way. Dolman Law Group has the experienced lawyers in Clearwater, Tampa, and St. Pete that will fight for your right to compensation after your injuries; wherever they occur. Call them today at 727-451-6900 or contact them online for a free, no-risk consultation.

Who is Liable When Your Child is Hit by a Car?

Parenting is difficult - especially when you have active little ones. Young children do not have the same fears or instincts as adults, and children may walk or run out onto a busy street without comprehending the danger. Typically, if a pedestrian suddenly enters the road in front of another car and the driver does not have sufficient time to react, the driver is not liable for the pedestrian’s injuries either because the pedestrian assumed the risk of his or her behavior or because the pedestrian was the sole negligent party. But what happens if the pedestrian is a young child, or even an incompetent individual for that matter, who cannot comprehend the danger? Who is liable for the child’s injuries or the injuries the driver sustained in attempting to avoid the child?

Parenting Laws and Responsibilities in Florida

Under Florida law, a “caregiver” is defined as “a parent, adult household member, or other person responsible for a child’s welfare.” Ensuring that a child is well-cared for means that a caregiver must provide the following services to the child (if they do not, it is considered “neglect of a child,” a criminal offense in Florida):

  • Care;
  • Supervision; 
  • Food;
  • Nutrition; 
  • Clothing; 
  • Shelter, 
  • Medicine; and 
  • Medical Services. 

Further, a caregiver has a legal duty to protect a child from abuse, neglect or exploitation by another person. Florida courts have held that, during school hours, teachers qualify as “caregivers” under Florida’s statutes, and as such, must monitor a child to ensure he or she is safe and well.

Liability for Pedestrian Accidents Involving Children

If a child is hit by a vehicle in Florida, who is liable for that accident and any resulting injuries depends on the facts and circumstances of the incident. For example, what if your child is on a school field trip while lawfully crossing the street in a crosswalk under his teacher’s supervision? Is the child’s teacher and/or school negligent if a car runs through the crosswalk and hits your child because the driver was not paying attention? Probably not. However, if a teacher has his or her back turned to a young child and that child runs into a busy road chasing a butterfly, the teacher can be held liable as that child’s caretaker for failing to supervise the child.

The driver may also be held liable if she was driving too fast to stop under the circumstances, was not paying attention to the road, and did not attempt to avoid the accident. But what if your child was hit when he was 15 years old, and he ran into the middle of the road as part of a game with his friends? In this case, you likely could not hold a caretaker liable for your child’s injuries, as he was old enough to assume the risk of the accident and old enough to be found negligent for those actions. When the accident involves a young child, however, there is almost always liability on the part of the caretaker if the child is injured by a motor vehicle while under that person’s care.

Florida Comparative Negligence Law

Each state adheres to its own laws for determining fault when it comes to pedestrian v. car accidents; although, this may differ depending on whether the child was old enough to understand the nature of her actions, typically around 7 years old. While some states prohibit recovery if one party was more than 50% liable for the accident, a small number of states will prohibit recovery if you were even 1% at fault for the accident. Florida, however, follows what is known as a “pure comparative fault” system. Florida law states that “contributory fault chargeable to the claimant diminishes proportionately the amount awarded as economic and non-economic damages for an injury attributable to the claimant’s contributory fault, but does not bar recovery.” In other words, if your personal injury attorney successfully litigates your claims, then whatever amount you are awarded for injuries, say $10,000, is reduced by your percentage of fault. For example, if the jury found that you were 10% at fault for the accident, then you would only be able to recover $9,000, a 10% reduction in your original award.

Accordingly, if a ten-year-old child was hit by a speeding motor vehicle outside of a crosswalk while on a school field trip, the jury will have to determine the percentage of liability to be born by each party. The jury may find that the driver was 40 percent liable, the teacher 50 percent liable for negligent supervision, and the child 10 percent liable for her negligent actions. This means that your recovery would be reduced by 10 percent due to the child’s negligence, but it is not a bar to recovery itself.

Florida Coverage for Medical Bills

Luckily, Florida is what is known as a “no-fault” state, which means that drivers are required to carry personal injury insurance as a part of their auto insurance policy. This insurance becomes primary after a car accident and covers emergency medical expenses as well as certain additional medical bills, lost wages, and incidental expenses after a car accident. Every passenger in a vehicle is eligible to be covered by the driver’s no-fault insurance policy, and a pedestrian who is hit by a driver is also eligible to receive no-fault benefits. This means that your child’s initial emergency medical bills should be covered by the driver’s no-fault insurance, but there is generally a cap of $10,000 on the policy. If the child, therefore, suffered from severe injuries or is experiencing post-traumatic stress as a result of the accident, you should consult a Florida personal injury attorney to discuss your options for recovery.

Contact a Clearwater Personal Injury and Child Protection Attorney Today

If your child was injured by a motor vehicle, contact the Dolman Law Group immediately. Their trained personal injury and child protection attorneys can help answer your questions and fight for you and your child’s right to compensation. They are your premier personal injuries lawyers in the greater Tampa Bay area. Call them today at 727-451-6900 or contact them online for a free, no-risk consultation.

Tuesday, July 18, 2017

Florida Supreme Court Rules GEICO to Pay Attorneys' Fees

Thanks to a Recent Decision by the Florida Supreme Court, a 15-Minute Call on Car Insurance May Not Cost You Thousands as the Court Ruled Against GEICO in GEICO v. Macedo

Alysia Macedo brought a personal injury claim against Zackery Lombardo after they were involved in a car wreck, for which Lombardo was at-fault. GEICO provided Mr. Lombardo with $100,000 in liability coverage for the loss. Before the case went to trial, Macedo and her attorneys offered to end the case if Lombardo and GEICO would agree to a $50,000 settlement. They refused.

Like most automobile insurance policies, GEICO had sole authority to decide whether to settle the claim or to allow a lawsuit to be filed. GEICO chose not to settle and allowed the lawsuit to move forward. This sole discretion to chose, of course, extended to Ms. Macedo’s personal injury claim against Mr. Lombardo. 

Even though GEICO could have settled the claim for $50,000, GEICO chose not to settle and instead go to trial. They lost the case. 

The jury returned a verdict for more than $200,000 against Mr. Lombardo, more than four times Macedo's original asking price. 

The original $50,000 offer was made in the form of a Proposal For Settlement, which falls under Florida Statute 768.79Normally, attorneys' fees for personal injury cases are paid by the plaintiff based on a contingency fee. This means that the person suing pays their attorney a percentage of their compensation is they win their case or nothing if they don't. 

However, the statue states that if a plaintiff offers a settlement deal to the defendant and they choose not to accept it and the jury's judgment is more than 25% of the offer, the plaintiff is due reasonable costs for having to go to trial. This includes investigative expenses and attorneys' fees. 

This part of the law is designed to encourage defendants to take reasonable settlement offers in order to save the courts time and money, and to expedite the process for everyone involved. 

Because Ms. Macedo's judgement was obviously higher than 25% of $50,000, she was entitled to recover attorneys’ fees and costs against the defendant, Mr. Lombardo. 

In a post-trial decision, the trial court ruled that Mr. Lombardo's insurer, GEICO, should pay for those extra costs and expenses awarded against its insured, specifically because they were the ones who made the decision to go to trial.

GEICO objected and took the matter up on appeal. While GEICO did not object to fees and costs being awarded directly against its insured, it did object to the ruling making GEICO responsible for those fees and costs. 

GEICO asserted its policy did not cover “the costs and attorney’s fees awarded against [its insured] under the [Proposal for Settlement] statute because they were not ‘incurred by an insured at [GEICO’s] request.’”(1). 

The Florida Supreme Court disagreed, pointing out the "expenses awarded against the insured were incurred as a result of the insurance company’s choice not to settle."

Remember, GEICO had sole control over settling the case; it was not up to Mr. Lombardo. It could have authorized a settlement and in essence controlled the litigation. “It follows that any costs or fee incurred as a result of GEICO exercising its authority and control is something that it intended to pay.” The Supreme Court concluded the applicable insurance provisions at issue were ambiguous, and the GEICO policy should therefore be construed to provide coverage for the costs and attorneys’ fees awarded against Mr. Lombardo.  

In the end, while GEICO insurance may have initially saved Zackery Lombardo 15% on his car insurance through GEICO, he was left personally exposed to thousands upon thousands of dollars in litigation expenses from a lawsuit GEICO chose not to settle. Good thing for him, and all of us, that the Florida Supreme Court spent more than 15 minutes debating this important car insurance issue and properly ruled in favor of GEICO paying the expenses they forced everyone to incur.

-Article written by Dave Neiser, Esq., a Board Certified Civil Trial Specialist at Dolman Law Group

(1) GEICO v. Macedo 42 FLW 731(Fla. July 13 2017)

Monday, July 17, 2017

Driving While Drowsy and its Effects on All of Us

driving while drowsy

Recently, I was on a family vacation in the Rocky Mountains. As our flight had arrived late, and the lodge at which my family and I was staying was several hours from the airport, I ended up driving up the mountain under the cover of darkness. As my children snored in their car seats, and my wife rested her eyes, I couldn’t help but feel tired myself. I had plenty of rest the night before and had even slept on the plane, and yet, I was fighting heavy eyelids. Eventually, we arrived safely at our destination, but it was certainly a scary ordeal: driving in an unfamiliar area on dangerous terrain, in a situation (driving up and down a mountain) in which I’d never found myself before.

It was after my family and I returned from our trip that I did some research on the topic of drowsy driving. According to the Center for Disease Control, “an estimated 1 in 25 adult drivers report having fallen asleep while driving in the previous days(1). Further, according to several studies, conducted by AAA and other academic institutions, there could me as many as 6,000 fatal car crashes each year which are caused by drowsy drivers(2).

While the numbers are jarring, it should not surprise anyone to learn that drowsy driving can be so dangerous. When people are tired or sleep deprived, their reaction times are slowed, their decision-making is impaired, and they are simply less able to pay attention to the road, other drivers, and potential hazards. In fact, while certainly everyone (even those who do it) would agree that drunk driving is extremely hazardous to one’s health, many people fail to consider that  the effects of sleep deprivation are very similar to the effects of alcohol. According to a study released by the National Center for Biotechnology Information, even “moderate sleep deprivation produces impairments in cognitive and motor performance to legally prescribed levels of alcohol intoxication”(3) The study found that test subjects, after 17-19 hours without sleep performed equal to or worse than test subjects without any level of sleep deprivation but who had blood alcohol content levels of 0.05% (which is just .03% below the legal limit in the state of Florida).

So why do so many of us continue to drive while we are tired? Perhaps pride plays a role. Anecdotally, in situations similar to the one I described above, I’ve always felt a sense of accomplishment in being able to complete a long car ride without having to give up the wheel. Oddly enough, “men are more likely than women to drive while drowsy and almost twice as likely to fall asleep while driving”(4).Additionally, I’m certain some drivers who have driven while tired or who have dozed off at the wheel, simply didn’t think it would happen to them. 

Many drowsy drivers are unable to stop or have someone else take the wheel; it's not really an option. They are driving alone and thus can't turn over the wheel. Or they can't stop and rest because they need to get home to their children. “Sleep related crashes are most common in young people, especially men, adults with children and shift workers”(5)

Another group that vulnerable to high incidence of drowsy driving is truck drivers(6). The Harvard School of Medicine conducted an anonymous survey which found that: 50% of respondents admitted to having driven while drowsy and 25% of respondents admitted to having fallen asleep while driving, nearly half of long-haul truck driver respondents admitted to “drifting off” to sleep while on a long-haul route(7). 

Recently, amid rising concerns about the issue, the U.S. Department of Transportation has increased regulations on long-haul truck drivers, limiting the number of hours a driver is permitted to drive before a mandatory break. 

Still, the dangers presented by long-haul truckers and their propensity for driving extended hours are great. This is a serious concern, since accidents involving trucks are usually much more serious than other types. In fact, 98% of the semi-truck vs. passenger vehicle accidents in which there is a death, the person killed was in the passenger vehicle. Combine this statistic with truckers driving while drowsy, and it's easy to see why the topic is worrisome. 

For those truckers who drive most of their routes at night, the dangers are increased, as the body's circadian rhythm makes each of us more inclined to sleep during the night and wake during the day.

Drowsy driving is not like other issues that injure or kill our loved ones; it is a fixable problem with easy solutions. Prevent drowsy driving by:
  • Making sure that you are well-rested before hitting the road,
  • Handing over the wheel to someone who is not tired,
  • Pulling over to rest, if need be, 
  • or by leaving your car and opting for an Uber or taxi home. 
These options, which may cost a few hours, a few dollars, a few nicks in your pride, are well worth it if they prevent a family from having to receive a devastating phone call.

Have you or a loved one suffered injury or death because of a car accident? Was that car accident due to another driver falling asleep or driving while drowsy? Call one of the experienced and aggressive attorneys of the Dolman Law group to discuss your legal rights and options. We have the premier personal injury lawyers in the greater Tampa Bay area, and are here to fight for your right to compensation. Contact us today for a free, no-risk consultation by using our contact form or at (727) 451-6900. 

Friday, July 14, 2017

Safe Motorcycle Riding is Not Enough to Protect You From Negligent Drivers

Motorcycle riders face higher risks of injury – and greater severity of their injuries – than do drivers of passenger vehicles involved in the same accident. This is because motorcycles offer less protection to a rider that an enclosed vehicle does. Motorcyclists must be vigilant in using safety equipment and practicing safe driving habits. But neither of these can prevent accidents from happening.
To ensure that you are fairly compensated for any injuries sustained in a motorcycle accident, it is important that you have experienced legal representation while negotiating and litigating your personal injury claim. Trust the experienced attorneys at the Dolman Law Group to protect your legal right to be compensated for your injuries. Our lawyers have decades of experience in protecting the rights of accident victims across southern Florida. Our personalized service and vigorous defense of your right to recovery will ensure a just outcome for personal injury claims from all kinds of motorcycle accidents.
Motorcycle Safety Tips
Though safe motorcycle driving habits will not prevent all accidents, they can reduce the chance of having an accident, and mitigate the severity of your injuries in the event an accident occurs. Follow our safety tips to make your ride as harmless as possible.
  • Always wear a helmet! Make sure that your helmet is properly fitted to your head and meets Department of Transportation safety standards. Research consistently shows that helmets save lives and that states with mandatory helmet laws have fewer motorcycle fatalities than states without such laws. Wear a helmet even when riding through states that do not legally require you to do so.
  • Wear other appropriate safety gear. Long sleeves and leather pants can protect you from road rash in the event you are thrown from your bike. Gloves should be properly fit so there is no chance that they will interfere with your hand controls.  
  • Make sure that you have the proper training and experience prior to taking a motorcycle onto a public roadway. Motorcyclists should engage in continuing education to ensure their riding skills remain sharp.
  • Stay visible. Motorcycles are smaller than passenger vehicles, and this makes them more difficult to see – especially at night or in inclement weather. Use reflective clothing and proper signaling to help other drivers see you. 
  • Don’t get distracted by technology. If your motorcycle trip is bringing you to an unfamiliar area, be sure to review your route ahead of time, so you aren’t distracted by navigation systems on the road. Motorcycle drivers must use greater physical control of their vehicle than drivers of cars or trucks. This makes smartphones, navigation systems and other electronic devices particularly dangerous to motorcycle drivers.  
  • Slow down! The best way to avoid a collision is to allow enough time to react to obstructions, traffic, and other road conditions. 
  • Allow plenty of space between your motorcycle and other cars in the roadway. This is particularly important when another driver seems to be swerving or engaging in other unsafe driving behaviors. Make sure you have adequate stopping distance in the event that another vehicle on the roadway loses control.
  • Perform regular inspections of your motorcycle and safety equipment. Anything that is not in good working condition should be repaired or replaced immediately.
  • Lane splitting is illegal in Florida. Not only does it increase the chances of having an accident, but a motorcyclist who is involved in an accident while lane splitting will be presumed to be legally responsible (“liable”) for causing the accident. 
  • Never drive while intoxicated. Drugs, alcohol, and prescription medications can all affect your ability to safely operate a motor vehicle. 
  • Never drive while tired. Take frequent rest breaks to ensure that you are alert and safe on the road.
  • Pay particular attention to the condition of the roadway. Motorcycles are more susceptible than passenger vehicles to roadway conditions such as potholes, uneven surfaces, slippery surfaces due to ice or water, etc. 
  • Keep your eyes moving. By completing a rotating view of all mirrors and other views, you will both help yourself stay awake and notice any obstacles or hazards in the roadway as soon as possible.
  • Slow down and use extra caution when driving through construction zones. Debris in the roadway, workers on the side of the road, and other hazards make construction zones a prime spot for motorcycle accidents to occur.
  • Slow down and use extra caution during periods of low visibility. This can include rain, hail, snow, fog, mist, hurricane season, or simply when you are riding at night.
  • Braking and safely navigating curves in the road can be particularly difficult for motorcycle riders. Slow down and allow yourself both plenty of space and a viable escape route. Experienced riders should be careful not to become complacent when navigating turns.
  • Carry a first aid kit and a charged mobile phone in your cargo hold any time you ride. These may make the difference between life and death after an accident.
  • Be safe when riding in a group. Hold riders’ meetings before the trip to determine appropriate group sizes and riding abilities. Assign an experienced head and tail rider to each group, who can appropriately maintain a safe group speed without creating pressure for riders to keep up. Maintain awareness of your group and other drivers on the roadway. 
  • Watch out for animals on the side of the road. Wild animals, in particular, tend to act unpredictably, and this can make it difficult for a motorcycle rider to safely avoid a collision.

The Right Motorcycle Accident Attorney for Your Personal Injury Claim
The Dolman Law Group has decades of experience in protecting the legal rights of motorcycle accident victims in and around the Clearwater area. Call (727) 451-6900 to schedule your free consultation with a personal injury attorney today. Learn how our personalized service and professional representation can make a difference in your personal injury claim. We will ensure that you are fairly compensated for your injuries so that you can focus on your recovery.
Dolman Law Group
800 North Belcher Road
Clearwater, FL 33765