It seems that more cars including additional GM products are facing recalls based on design and manufacturing defects. Some of the problems are those that could potentially cause serious or catastrophic injury, reminding us that often our vehicles may not be as safe as we believe they are, and that it’s important to pay attention to the recall notices in the news. The Miami personal injury lawyers at Gerson & Schwartz, P.A. are keeping a close eye in the wake of the latest  General Motors recall fiasco.

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Airbags a Big Recall Target

The rumor is true, that often an airbag can cause as much injury as a crash itself. Still, airbags often save lives, and are an important protective tool for drivers.

Jeep, which is owned by GM, is now recalling 200,000 Jeep Cherokees for faulty airbags. The problem appears to be that the side airbags are deploying even without an impending accident, usually upon heavy offroad driving, which naturally causes the car to bump, shake, and rattle. It is mostly 2014 and 2015 models that are being recalled. The fix is, apparently, a software repair that can be done at a dealership.

This is on the heels of the National Highway Traffic and Safety Administration recalling 2 million vehicles for the exact same reason—early airbag deployment. Many of these involved manufacturer fixes of earlier recalls, that did not fix the problems.

The impact sensors on the airbags on many of these cars now must be completely replaced. Some of the vehicles involved are Toyotas and Hondas, where the airbag doesn’t just deploy without an impact, but actually may explode fragments of debris outward. The model years are 2002-2004.

In an opposite problem, Jaguar Land Rover is now recalling vehicles because their airbags may not deploy when lighter individuals are seated in passenger seats. The problem was discovered when passengers noticed the “airbag disabled” light was on when they were sitting in the seat.

Numerous Porsches and Audis (all owned by Volkswagen) have also been recalled for fuel leak problems, and 100,000 Range Rovers and Jaguars were recently recalled for brake fluid leakage problems.

Pay Attention to Recall Notices

If you are driving a vehicle that has been recalled, it is vitally important to have the recall taken care of. As you can see, many of the recalls involve parts of your vehicle that could cause major injury if you are involved in a crash (or not involved in one, as the airbag issue demonstrates).

If you fail to have a recall taken care of, end up injured as a result of a design defect or manufacturing in your vehicle that could have been fixed in the recall, and end up filing a personal injury lawsuit, the other side could deny you payment on the basis that you failed to attend to the recall.

There may be many causes including product liability issues in motor vehicle accidents, and many causes may even take an expert to discover. If you or a loved one were seriously injured in an accident contact the  Miami personal injury lawyers at Gerson & Schwartz, P.A. today for a free consultation about your injury case.

 

14627840535_7cff54df64If you are injured in an accident, and the negligent party was under the influence of alcohol, it may appear that your case is a slam dunk. Generally speaking from a liability standpoint this may be true.  However, collecting from the insurance company for the full amount of your damages may not be as simple as you think. Some insurance policies have exclusions for certain acts.  This means the insurance company may not be required cover an insured’s negligent or intentional act, if there is a claim that arises based on conduct that is  excluded or not covered under the insurance plan language. This can include a claim based on a fight in a night club, or even for punitive damages such as an insured in a drunk driving accident. These exclusions are common in premises liability, bars, nightclubs, and other commercial property insurance policies. For these reasons, it is always a good idea to ask for a free consultation with a personal injury lawyer in Miami to discuss if any of these potential issues may apply to your case.

Recent Case Enforces Alcohol Exclusion

This does not mean that the tort feasor or insurance company is completely off the hook. The reality of collecting against a potential defendant directly may or may not be practically. It just means that the an action to collect any judgment for parts of the claim that are not covered may have to come directly from the Defendant, as opposed to the insurance company. In other instances, alternative theories of legal liability and claims may be filed against other potential defendants and another way to avoid these legal pitfalls that may get in the way of justice. Some insurance policies are written with exclusions from liquor liability, such as alcohol, or serving of alcohol to minors, for assault and battery exclusions, and even dog bites. These exclusions may affect an injured persons ability to collect from the insurance policy itself.

In a recent case, a man was killed when he carelessly, and while under the influence of alcohol, was operating a jet ski. The insurance company denied his beneficiary’s claim to the proceeds of a life insurance policy, citing the policy’s exclusion of payment for any loss that occurred while the insured was under the influence of alcohol.

Although the beneficiary admitted that the deceased was intoxicated, an expert testified that the alcohol wasn’t the main cause of the accident. Thus, the beneficiary argued, the proceeds of the policy should be paid.

The appellate court disagreed, noting that even if alcohol wasn’t the primary cause of the accident, it was a contributing cause. The court, absent much data, concluded that it was simply a well-known fact that alcohol contributes to accidents of all kinds.

Because exclusion policies have been enforced so long as alcohol played “some” role in an accident, the appellate court agreed that the policy was not effective. Any causal relationship, even a slight one, between alcohol and an accident is enough to activate a policy’s alcohol exclusion provisions.

Why The Case is Important

You may wonder why you should care what someone’s insurance policy paid their beneficiaries. The reason is because if a liability policy contains the same exclusion, there may be no insurance coverage to compensate you if that person injures you.

If you are injured by Wal-Mart or Publix, insurance coverage may not matter; those companies can pay a judgment without insurance. But if you are injured by a driver, or at someone’s home, collecting a judgment can be a challenge without insurance coverage. Your judgment may even be discharged if the negligent party files for bankruptcy.

Insurance companies know the problems that arise when uninsured individuals injure others. Thus, they will often use any excuse they can to avoid defending or paying for a claim. The injured victim may be in the position of arguing that the negligent person should be afforded insurance coverage, so the victim has someone to collect a judgment from.

When courts make decisions like this one, which provide loopholes and weaken the force of insurance policies, it’s not just the insureds who suffer—it’s those that they injure that may suffer as well.

If you are injured, you want injury attorneys that understand all potential legal issues, including legal liability, insurance coverage issues, and financial responsibility. Talk to a lawyer at the Miami personal injury law firm of Gerson & Schwartz, P.A. today for a free consultation.

If you file a lawsuit to recover damages for injuries you sustain, in most cases, you can expect to be called to sit for deposition. Movies and TV have ingrained in us that depositions are scary things. But if you’re properly prepared, and understand how the process works, depositions are nothing to be nervous or concerned about.

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What to Expect

As an initial warning, this is general advice only. Every case is different, and a good attorney will prepare you for deposition questions that may be specific to your case and your history.

A deposition is simply a process where attorneys from the other side ask you questions about your accident, your health, and to some extent, about your history. Your attorney will be there, but generally, can’t speak or answer questions for you, and you won’t be able to secretly confer with your lawyer before answering a question.

There will also be a court reporter there, transcribing everything you say for the record. It is important that you are clear, and that you say exactly what you will say at any trial down the road.

In most cases, opposing attorneys are cordial and polite when asking you questions. There is an impression that the attorney’s questions are intended to fool you or that questions have a secret, hidden legal meaning. This usually isn’t the case, and again, your attorney should let you know beforehand about any such questions.

The Questions at Deposition

Most questions are not very invasive. The most invasive questions usually concern your past health or medical history, and any prior lawsuits you may have been involved in, if any. Of course, if there is something very sensitive that you are concerned about discussing, you should tell your attorney beforehand so those issues can be dealt with.

The bulk of the questions will usually involve the accident itself, and your treatment or recovery from any injuries. Be aware that if the other side has surveillance video of the accident or of your daily activities after the accident, you often will not have the opportunity to review it before your deposition.

The deposition also is the other side’s opportunity to evaluate you as a witness. Are you likeable? Well spoken? Can you confidently relay what’s happened to you? Again, your attorney will give you pointers in improving in these areas.

Don’t Fear Depositions

Many injury victims actually enjoy depositions, and find them cathartic. The deposition is your chance to tell the other side exactly how your life has been affected. After months or years of having an attorney speak for you, you now get the chance to speak for yourself, and explain in your own words what the accident has done to you.

In many cases, depositions can lead to settlements, avoiding the necessity of trial. Think of it as a necessary but important step in the process of getting justice and fair reparation for your injuries.

Injury lawsuits can be involved processes, but aren’t difficult or fearful with the right attorneys by your side. Talk to the Miami personal injury attorneys at Gerson & Schwartz, P.A. today for a free consultation about your injury case.

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In a personal injury action, under Florida law a Plaintiff must show the elements of 1.) Duty 2.) Breach 3.) Causation, and 4.) Damages.  When we are injured by the negligence of another, especially when we are injured on the premises or property of a business, it’s common to think that as long as you can prove the other person or business was at fault or negligent, the case is won. But there is still the question of injury or medical causation. If someone’s negligence didn’t actually cause or contribute substantially to the injuries for which you are claiming damages, the law provides that a jury must  enter a verdict for the defendant on that issue. This a common defense strategy where there  injuries that are considered to be degenerative, or “pre existing” in nature .  Florida law does provide for aggravation or acceleration of a per-existing injury. However, this still requires proof of that the prior injury was accelerated but for the harm that was caused. Many defense lawyers and insurance companies often defend cases on these types of arguments. Our Miami injury lawyers are well versed in dealing with and many of other types of affirmative defenses and how to deal with them in the court room.

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No Causation in Wal-Mart Negligence Trial

The case involved a woman who said she was injured when an 8.4 oz “squishy” (in the words of the court) pumpkin fell on her at Wal-Mart. Wal-Mart admitted they were negligent, but claimed that there’s no way that an object of that size could have ever caused the victim the injuries she said she sustained.  Also referred to medical causation, the lawyers argued that even though they were at fault, the element of causation was missing and therefore argued that the jury must find in their favor. The defense hired a medical expert to testify against the victim.

The jury agreed with Wal-Mart, and entered a verdict of zero dollars. But the court allowed the case to be re-tried only on whether the victim could recover money to compensate her for her initial diagnostic tests. In other words, the court was going to allow her to try to recover for the money she spent in trying to determine if she had been injured.

Appellate Court Agrees With Jury

Wal-Mart appealed. The appellate court noted that it has long been the law, that even where there is no medical causation, a party still can recover for costs incurred in trying to see if an incident caused injuries in the first place. For example, even if a jury ultimately finds that an object that fell on you did not cause a permanent injury,  the Plaintiff sustained $500 in medical bills for the initial ER visit or doctor’s testing and those costs were still recoverable.

But there is an exception to that rule, when an expert sufficiently states that an accident could not have caused any injury.  Because Wal-Mart had such an expert, the appellate court found that no new trial was warranted at all, and the jury’s verdict of zero should stand.

Procedural Errors Also Caused Problems

Although it wasn’t the primary cause of the appellate court’s denial, the court did note that the victim never requested that the jury determine whether she should get her diagnostic costs on the jury verdict form. Rather, only a standard jury form was used, which has no such provision.

The victim’s attorneys also never moved for a directed verdict on the diagnostic bills. Thus, the court found that issue of recovery for the initial diagnostic testing had been waived.

It’s easy to get caught up in witnesses and testimony, and forget to take care of the details during an injury trial. But those details can end up being costly, as they potentially were here. Failing to object on the record at trial or in other words raise the issues during trial can prevent an appellate court from ever considering the issue on appeal.

If you are injured on the premises of a business, make sure your attorneys understand all the elements of your claim and the procedural requirements for trial.  Talk to the a personal injury lawyer in Miami, Florida  at Gerson & Schwartz, P.A. today for a free consultation about your injury case.

 

The sad fact is that in many catastrophic accidents in death results. When there is a death, it is left to the estate of the deceased to pursue any claims against third parties. But there are still certain areas where the right of an estate to bring a claim is called into question.

A new case, however, has broadened the areas where the estate of a deceased person can bring a lawsuit.

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Accident on the Job Brings Lawsuit

The case involved a landscaper killed on the job when he was crushed by a tree. The deceased’s estate initiated a lawsuit against the employer. The employer didn’t defend the claim, and a default was entered in favor of the estate. The insurer for the employer, Zenith Insurance, refused to pay the judgment, so the estate sued Zenith.

The question arose as to whether the estate had any right to sue Zenith. Zenith argued that while the estate may have had the right to bring the injury claim on behalf of the deceased, it had no standing to sue for breach of an insurance contract it was not a party to.

In Florida law, judgment creditors can sue liability insurers that have an obligation to pay for a judgment. Thus, the Florida Supreme Court held that because the estate had become a judgment creditor towards Zenith when it obtained the default judgment, it had standing to bring the breach of contract action against it.

Additionally, Florida statutes specifically allow a party that obtains a judgment against an insured person to pursue the insurer for payment. Although the law doesn’t specifically say that right is given to estates, the court found no reason why it would be inapplicable to them.

Workers’ Compensation Immunity Still Applies

But the news wasn’t all good for the estate. If the estate is going to “stand in the shoes” of the deceased in bringing the contract action against the insurer, it would have to live under the same rules that the deceased would have to if he were alive.

In this case, that meant the application of workers’ compensation immunity. Under workers’ compensation immunity, an employee can’t sue his employer for general or ordinary negligence (it can only do so where there is gross or extreme negligence, a high standard to prove). A worker’s remedies in ordinary negligence against an employer are limited to the workers’ compensation laws.

Thus, because here the injuries were solely based on ordinary negligence, and the employee couldn’t have sued the employer, neither could the estate. The court threw out the default judgment against the employer on that basis.

So in the end, the court expanded the rights and remedies that the estate of a deceased victim has to bring claims. But in any wrongful death case, an attorney for an estate should make sure that they aren’t trying to gain any remedy or make any claim that’s greater than what the deceased would have had, if he had survived the accident the case is based upon.

Wrongful death claims are obviously catastrophic, and emotional. You want attorneys that understand all aspects of handling such sensitive cases. Talk to a  Miami personal injury lawyer at Gerson & Schwartz, P.A. today for a free consultation about your injury case.

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If you’re injured on someone else’s property, you may not give much thought as to whether your case involves ordinary negligence, or premises liability. In fact, the terms sound practically identical in many ways. But legally, and to injury lawyers that specialize in premises liability cases,  the distinction can make a big difference as to whether you’re entitled to recover for damages or not.

Recent Case Involves Negligent Security Claim

A recent case has examined the distinction between the two terms. The case involved a victim who was shot in the leg while attending a party at an apartment complex. The victim did not live at the complex.

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The victim sued the complex, alleging negligent security—specifically, that more or better security was needed to prevent the incident from occurring.

At trial, the apartment complex contended that the victim was a trespasser on the property.

Florida Statutes provides that “to avoid liability to undiscovered trespassers, a person or organization owning or controlling an interest in real property must refrain from intentional misconduct”  that causes injury to the undiscovered trespasser. However, there is no duty to warn of dangerous conditions.  On the other hand, in order to avoid liability to discovered trespassers, a person or organization owning or controlling an interest in real property must not engage in “gross negligence”  or intentional misconduct that causes injury to the discovered trespasser. In addition, the property owner must warn the trespasser of dangerous conditions that are known to the person or organization owning or controlling an interest in real property but that are not apparent to others.

A property owner can only be liable to an undiscovered  trespasser if it knew of a danger  intentionally injuring the victim, which obviously wasn’t the case. The victim’s status as a trespasser would only matter if the negligent security claim was considered “premises liability.”

The victim contended that he was suing for ordinary negligence—negligent security—and that because it was not a “premises liability” claim, that his status on the property as a trespasser didn’t matter, and the jury shouldn’t take it into account.  The standard for ordinary negligence is “reasonable care,” a much easier standard to prove for an injured victim.

The trial court agreed with the complex, declaring the victim a trespasser, and the jury entered a verdict denying recovery for the victim.

Appellate Court Considers Whether Claim is Premises Liability

On appeal, the appellate court focused on whether a negligent security claim has some relationship to the land. If it did, then it was a premises liability case, and thus, the victim was a trespasser, and the jury would be correct in denying recovery.

The court noted other cases involving negligent security, where courts examined the victim’s relationship to the land.

The court also rationalized that premises liability usually has to do with passive negligence. For example, if someone slips on water, the landowner may have failed to clean, but it didn’t actively injure someone. Here, the landowner didn’t actively injure the victim. Rather, it failed to employ adequate security. Thus, the negligence was passive, making it closer to a premises liability claim.

Additionally, with premises liability, it matters where the negligence happens, whereas with ordinary negligence, it does not. For example, if someone negligently operates construction equipment and injures another, it doesn’t matter where the injury occurs. It would always be negligent. Thus, it’s ordinary negligence.

But here, the only way that the complex could be negligent is if the incident happened on its premises, which it did. It’s similar to slipping on a substance. If you fall on a substance off of someone’s property, they aren’t liable. The substance has to be on their property. Location matters. And when it does, it’s a premises liability claim.

The distinction between premises liability and ordinary negligence seems like semantics. But as the victim in the case learned, it’s a crucial distinction, which can be the difference between recovering for injuries, or being left with nothing.

Negligent security claims can be very difficult and nuanced. But if you’re injured on someone else’s property as a result of criminal activity, you should speak to attorneys who can properly analyze negligent security claims. Talk to a Miami personal injury attorney at Gerson & Schwartz, P.A. today for a free consultation about your injury case.

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This tragic injury story happens all too often in South Florida: Someone is served alcohol, gets drunk, drives, and kills or injures someone on the road. We all know this kind of behavior is illegal. But often the question becomes what liability the bar has for serving the alcohol when the patron drives away and injures someone. (Note that the laws apply to any establishment serving alcoholic drinks, but for ease, we’ll just call them collectively, “bars.”)

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When Bars Serve Intoxicated Patrons

A patron has consumed loads of alcohol, and maybe even displays signs of intoxication. Yet, the bar continues to serve alcohol, knowing that someone has had too much, and will likely be getting into a car shortly. Is the bar liable if that person injuries someone?

When people talk about “tort reform,” they often say it like it’s a good thing. But here, tort reform has made it easier to put alcoholics on the road because the laws that allow a plaintiff to sue a bar for knowingly serving an intoxicated person (often called “Dram Shop” laws) are very tough in Florida for injured litigants.

Florida Statute 768.125 prevents anybody for being sued just because they served someone else alcoholic drinks. There are only two exceptions:

  • A person serves someone underage; or
  • A person “knowingly” serves a patron “habitually addicted to the use of” alcoholic drinks.

Let’s look at these two “exceptions.”

Serving to Someone Underage

In the first exception, a bar owner must serve an underage patron to be liable. Furthermore, under the theory of strict liability, the server who provided alcohol to the minor will be deemed liable, regardless of whether he or she knew the minor’s age. Here, if a victim was injured by a minor who had been drinking at an establishment, the injured party would not have to show that the server knowingly provided alcohol to a minor, only that the minor was served alcohol at all. This places the responsibility of verifying the age of the minor directly on the server and establishment, and cannot be used as an excuse to avoid liability for subsequent accidents.

Serving to Those of Legal Drinking Age

The second exception is even tougher. A bar has to not just knowingly serve too many drinks, but has to do so to someone habitually addicted to alcohol. Knowingly serving too many drinks to someone isn’t enough, even if the bar knows the patron is intoxicated. That patron has to have an addiction problem, and the bar has to somehow know about its patrons’ addiction habits to be held liable for injuries they cause.

DUI car accidents aren’t just criminal matters. You may have a right to recover damages for your injuries. We sue Miami and Dade County establishments that recklessly serve alcohol to those they shouldn’t. Talk to the Miami personal injury attorneys at Gerson & Schwartz, P.A. today for a free consultation about your injury case.

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There are certain beliefs that we have about American justice that are crucial to an effective court system. One such belief is in the neutrality of our judges. That our judges will see our case impartially, without interference from public opinion, or their own personal beliefs. A recent case has upheld this idea, and it’s an important lesson in listening to what judges say while on the bench.

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Judge Makes Comments During a Hearing

The case doesn’t involve a personal injury, but rather involves an insurance coverage dispute. A homeowners’ association (HOA) sued its own insurance company after the insurance company claimed that the insurance policy did not cover the repair of falling concrete in a parking garage.

The insurance company asserted that because the HOA did not cooperate with them in their investigation of the problems, they had not yet agreed to pay for the damage.The HOA asserted they needed to have experts go and look at the property as well before agreeing to coverage.

In a hearing occurring before any trial, the judge made the comment to the attorney for the insurance company that his client should “fork over the money” if they haven’t denied coverage. The judge also stated that the insurance company had denied the claim, stated that he would sanction the insurance company, and stated that “This is not rocket science.…Ever since they put a piece of steel inside concrete they’ve been having these issues. It’s not a big deal.”

The court also advised the HOA’s attorneys, when they depose the insurance company’s expert, that “If it were me, I would still ask questions of an opinion nature and get the statements regarding privilege on the record.”

Appeal On Comments Ensues

The insurance company filed a writ (an appeal) to the appellate court, asking that the judge be disqualified from the case on the basis that he had clearly formed not just an opinion about the outcome of the case, but about the attorneys for the insurance company. It alleged that many of the judge’s comments suggested that he didn’t trust or believe the insurance company’s position—a determination that had to be made only at trial, when all evidence is presented, and not beforehand at a pretrial hearing.

A judge cannot become an “active participant” in litigation, or give advice to either party. The appellate court noted that here the court suggested that it would award sanctions to the HOA, even though the HOA hadn’t asked for them. Doing so was tacitly advising the HOA of what to do.

The same goes for the judge’s advice as to how and what kind of questions to ask at an expert’s deposition.

The court’s comments also constituted a predetermination as to what the facts will show, and a belief in facts that were not supported by any evidence at all, thus improperly turning the judge into a litigant, according to the appellate court.

Judges Are Crucial, Even With a Jury

It’s important to remember that even if your case will ultimately be tried by a jury, a judge still makes crucial determinations as to evidentiary issues, discovery of facts, jury instructions, and loads of other things that directly impact your ability to recover for injuries. Thus, preserving the neutrality of a court is vital.

Making sure you have an effective and fair trial starts long before the trial itself does. Make sure your attorneys are looking out for you from the very beginning. Talk to the Miami personal injury attorneys at Gerson & Schwartz, P.A. today for a free consultation about your miami or South Florida injury case

By now most of our readers should know that where a crime is committed, there may also be an avenue for civil recovery, by suing the wrongdoer for damages. A recent case provides an interesting analysis as to what happens when a family member is killed by another family member, and a surviving spouse attempts to sue for damages as a result of that crime.

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A Tragic Familial Murder Case

The case is Cosman v. Rodriguez, and it involved the killing of a wife by her husband after fifty years of marriage. The husband was convicted of murder, but the wife’s surviving adult child tried to sue the husband for damages.

He sued both on behalf of his late mother’s estate, but also individually, for his own grief, pain, and suffering.

The problem was that Florida’s wrongful death act states in part that minor children can recover wrongful death damages from the death of a parent only if there is no surviving spouse. Here, of course, there was a surviving spouse—the murderous husband behind bars.

Thus, the husband argued, the son could recover nothing, because he was still alive. The trial court agreed, and dismissed the son’s wrongful death action.

Appellate Court Cites Probate Statute

But on appeal, the appellate court noted that the trial court did not apply an important statute in Florida’s probate code. That statute says that where a survivor kills the deceased, Florida’s probate code treats the situation like the survivor predeceased the dead person.

In plain language, it means that someone who kills another gets no benefits under Florida’s probate laws. You can’t kill your wife and expect to have her assets devised to you. The statute also says that “Any other acquisition of property or interest by the killer,” is treated in the same manner, thus extending the reach of the statute beyond the Probate Code into other areas, such as personal injury lawsuits.

Because it was presumed that the husband had died first, thus negating the language of the wrongful death statute, the appellate court reversed the trial court, and pushed the case back to the lower court to allow the son’s wrongful death case to continue.

Husband Tries Another Low Tactic

Adding to the charm of the husband, he also called another of his deceased wife’s sons, this one severely disabled, to testify at trial. The child was clearly not competent to testify.

The appellate court held that the only reason the disabled son was being called was to create sympathy with the jury, and that awarding damages against the husband would somehow hurt or affect the lifestyle of the disabled child. There was no evidence that the husband even supported the disabled child.

As many inter-familial problems tend to become, this dispute became very ugly. Still, from an academic standpoint, it does go to show that there are laws that prevent family members who kill others from profiting from their deeds, and that there may still be valid wrongful death claims for any surviving relatives or children.

Injury cases can be personal and sensitive, and may call into play statutes from other areas of law. You need attorneys that can give you a big picture analysis. Talk to the Miami personal injury attorneys at Gerson & Schwartz, P.A. today for a free consultation about your injury case.

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When someone is injured, we normally think of suing a person or a company whose negligence was responsible for our injuries. But if you learned that ghosts—or, more legally proper, “phantoms”—could be responsible for injuries, you’d probably think we were joking.

But phantom defendants are far from funny. In fact, they can be a huge problem when they get involved in your injury case.

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How Phantoms Get Into Your Cases

Before we discuss phantom defendants, it’s important to understand how they get involved in cases in the first place.

Normally, an injured person sues the defendant responsible for their injuries. At that point, a defendant has the option of blaming someone else for the negligence that you allege they committed.

As an example, you may sue Publix for maintaining a slippery floor. In turn, Publix may blame a company that cleans their floors for them, saying, in essence, “if anybody is negligent, it’s not us—it’s them.” In everyday terms, we may think of this as “passing the buck,” because that’s really what it is. So, you’d add the cleaning company to the defendants named in your case.

But sometimes, the defendant believes someone is responsible, but it doesn’t know who that person (or business). This often happens in car accidents.

Let’s imagine a car swerves in front of you, causing an accident. You sue the other driver. That other driver then says that they swerved into your lane because a crazy motorcyclist was weaving and almost hit them, and that the motorcyclist is to blame for the entire accident.

The problem is, nobody has any idea who that motorcyclist is. You now have to sue the unknown motorcyclist, who becomes a “phantom” defendant.

Phantoms Can Cause Collection Problems

The problem with phantom defendants is that a jury can apportion liability to it. So if you are awarded $100,000 from a jury, but the jury believes the phantom defendant is 50% liable, that’s $50,000 you’re left to collect from someone who doesn’t exist.

Luckily, this is why we have (and suggest everyone carry) uninsured motorist (UM) coverage. UM coverage will pay you any amount that a phantom driver is liable to you for injuries (up to the limits of your UM coverage). If you don’t have UM coverage, you would have no way to collect against a phantom driver that a jury feels is liable for your injuries.

Problems can arise if an attorney isn’t careful. An attorney may feel like they don’t want to sue a phantom defendant, preferring to force the jury to apportion all liability to the known defendant. But opting not to sue a UM carrier can forever waive any claims against a phantom driver, leaving you unable to collect for liability apportioned to it, as one appellate case recently held.

Deciding whether to involve a UM carrier for the liability of a phantom driver is a tactical one, and UM time limits can be different than those involving suing a negligent party. Thus, an attorney should always be careful when he starts to hear a negligent defendant start to blame an accident on another, unidentified driver or company.

Knowing who to sue, and how to do it, can make or break a case. Talk to the Miami personal injury attorneys at Gerson & Schwartz, P.A. today for a free consultation about your injury case.

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