During our 37 years of practice we have seen such settlement conditions go from rare to routine. Legislation is needed to protect the public interest against the confidentiality conditions routinely required to get a fair settlement.
]]>When analyzing and presenting automobile accident cases, driver conduct is always an issue. Where the driver of the adverse vehicle has been drinking or was drunk there are additional issues not part of the ordinary accident case. The criminal case begins at the time of the accident investigation by the police when the defendant is arrested. When you are retained the criminal case is already underway and you must act promptly and aggressively to protect your client’s rights or the opportunity will have been lost.
Victims rights are now recognized. Two years ago the legislature passed a new statute requiring officials in the criminal justice system to advise victims of their statutory rights.
There is nothing improper in your speaking up on behalf of your client in the DUI prosecution. Your client has the right to be heard on several important issues
2. The plea-nolo vs. guilty no difference to prosecutor but it does to you
its also important to your client to have the def admit guilt not just agree not to
deny it any longer. To avoid or minimize jail the defendant will often make an elaborate verbal apology under oath to show his contrition to a sentencing judge which can be transcribed for use in a civil case.
3. The sentence restitution vs. condition of probation. Effect on insurance coverage. Our case with a company I won’t identify except to say the word farm paid 55K in medicals pursuant to liability policy limits. This was engineered by criminal lawyer who was very creative in getting Farm to pay out liability coverage without our knowledge or consent. State attorney makes it condition of probation to make it enforceable because if just sentenced to restitution and he doesn’t pay can’t put him in jail for failure to pay a debt but if it is condition of probation then it is enforceable as probation violation which means plea agreement can be yanked and defendant could possible be
maxxed by criminal judge.
The criminal case is a great source of evidence. The states discovery filing which occurs at arraignment contains a witness list, statements, and other documents that are useful in your investigation. These are all public record when filed in the criminal case so you are entitled to obtain them.
Toxicology is an important part of the case. If the defendant was injured in the accident subpoena his hospital records. Routine hospital admission labs show ethanol as a % of blood serum. This is more reliable than Breathalyzer results. Blood specimens and urine samples also show presence of other drugs, which may have acted in combination with alcohol to effect driver behavior. Hospital records will contain statements, and observations of the defendant’s behavior upon admission.
Accurate history of defendant’s age, size, drinking history and habits and experience,
Types and amounts of alcohol ingested, food intake and medications of illegal drugs are essential data to get a valid opinion of toxicology. Resorption rate, peak blood/alcohol level, metabolization rate are variables in assessing the effect on driver performance.
Some accident reconstruction experts are qualified to testify as to opinion on effect on driver behavior particularly if they have worked for or with law enforcement on traffic homicide cases. Some toxicologist are too especially if they routinely testify for the state in dui prosecutions. You may want to get a human factors expert. Such a witness can present data comparing intoxicated to sober drivers in perception time, reaction time, driver performance, etc. If the case damages and coverage warrant it I recommend using all three types of experts even though there is some overlapping of opinions. For exhibits, computer graphics and photo techniques to illustrate perception difficulties can be effective at mediation and in trial.
Depose the DUI investigators. These are your best witnesses to combat the expected testimony of the defendant that he had only 2 beers and was able to drive competently and it was your client’s comparative negligence that caused the collision. The accident report privilege only applies to the officer making out the Florida Uniform Crash Report.
It does not apply to the DUI investigation and every body along the chain from accident scene to jail cell is fair game.
Depose the person who bonded out the defendant, picked him up from jail when he got out or came to the scene of the accident. In the cell phone era wives and friends often are on scene before it is cleared observing drivers, vehicles, removing property (bottles) from persons and vehicles and getting the defendants side of the story. The physical description of the defendant after a night in jail is usually one that is helpful to hear and if it isn’t you haven’t lost anything by asking. Sometimes you can get real gems from a wife, friend or neighbor. In one case we had the wife claimed a privilege. It settled just before trial but I wanted to call her to the stand and have her refuse to testify about what her husband told her about the accident when she came to the scene.
]]>The effects and future of this legislation will have a significant for those who are injured in car and other automobile accidents. Florida was one of only twelve states to carry this legislation. Charlie Christ has included the scope of the legislative special set session of Florida law markers by adding no-fault auto insurance to the agenda.
]]> Law makers believe that the previous PIP laws have allowed medical practitioners to run up medical bills for injuries that do not require such care. Earlier this week, Charlie Christ expanded the scope of the special session of Florida law markers by adding no-fault auto insurance to the agenda.Phil Gerson, a Miami based personal injury lawyer for more than 37 years was asked what this means for car and other motor vehicle accident victims? " We really just don't know yet and well have to wait and see what the lawmakers decide" Gerson believes there will likely be some sort of personal injury protection set in place even if they do not mirror the previous protections afforded to accident victims under the previous no-fault laws.
]]>Last July, the Florida Supreme Court overturned the Third District Court of Appeal’s reversal of a final judgment entered in favor of smokers’ damages against cigarette companies and industry organizations. In December the Court denied petitions for re-hearing filed by the tobacco companies and gave plaintiffs one year to file suit on individual claims for compensatory and punitive damages.
]]> Using every legal procedure in the law books the tobacco industry caused further delay by filing a request for review in the United States Supreme Court then moving for a stay order in every filed case claiming that nothing should be done until the Supreme Court decided the case. Today’s refusal by the highest court in the land exposed the frivolous nature of the tobacco industry’s latest tactics. Trying to downplay the significance of U.S. Supreme Courts simple denial of its position the industry spokes person W.Ohlemeyer from Philip Morris Tobacco stated, “This is not a decision on the merits”. Of course it wasn’t, because the industry’s petition raised no issue worthy of Supreme Court review so it was denied summarily.
Individual smokers cases can now proceed with judges being assured that the Florida Supreme Court’s opinion as a correct statement of the law.
As Florida's no-fault insurance law ends its three-decade run Oct. 1, the state's highly competitive automobile insurance market may be ready to enjoy a new dawn -- or enter a new Dark Ages, depending on who you talk to.Hospitals fear being stuck with unpaid emergency room bills. Insurance agents are puzzling over what to advise their clients -- no-fault protection won't go away all at once but rather as policies come for renewal in the coming months. And consumers are often confused that the only plan for the future seems to be allowing no-fault to sunset and letting the chips fall as they may.
The only consensus among lawmakers and various business interests is that the current law invites fraud. There's no agreement on any kind of solution.The Legislature is now supposed to meet for a budget-cutting session Oct. 3, rather than Sept. 18 as originally projected. Many lawmakers anticipated a last-minute effort to extend or even reform no-fault during the earlier date.Now that the target is Oct. 3, it's certain that no-fault will expire -- and there's no word on whether the special session order that should be published this week will contain any agenda item other than the budget.
It's a PIP
The centerpiece of no-fault is its mandatory $10,000 personal injury protection coverage, which pays 80 percent of medical expenses and 60 percent of lost wages plus miscellaneous household expenses that might be caused by an accident -- for example, hiring cleaning or yard service while convalescing.
PIP has been effective in providing quick settlements of legitimate medical expenses, especially emergency room bills.But it's also spawned many outpatient "PIP clinics," mainly in Miami-Dade, Broward and Palm Beach counties. These medical facilities are noted less for the effectiveness of the treatments they provide than for the speed with which they can file claims totaling $10,000."Our no-fault system was by no means perfect. You are never going to come up with a perfect system as long as there are people out there looking to play the system and defraud the system," said Jim Nolan, president of Nolan Family Insurance. "It drives auto insurance costs for every consumer up by hundreds of dollars every year.
"The ripple effects from this are going to be heard for years to come," he said.
]]> Fault linesPrior to no-fault, Florida had a fault-based system -- if you were hurt in an accident, you sued the at-fault driver.Best case, the other driver had bodily injury liability coverage sufficient to pay the claim. Worst case, the case ended up in court, with the injured person going after the at-fault driver's insurance, followed by his other assets.
"Losing no-fault kind of scares me a little, because people will wind up in lawsuits more often," said Sheila Graham, agent with West Coast Insurance Agency.After Oct. 1, assuming there's no last-minute extension, Florida goes back to a fault-based system.Nolan said that one of the complexities of the no-fault law was that it protected drivers from pain-and-suffering claims, except when the accident resulted in a permanent disability. This will no longer be the case.
"In a post-no-fault world, drivers need to ensure that they have adequate insurance to protect their financial security, because if they don't, their entire financial portfolio will be in the crosshairs of the plaintiff's attorneys," said Rich Rasmussen, vice president of the Florida Hospital Association, a Tallahassee-based industry group.
Nolan said that under no-fault, all claims were settled first against the accident victim's own PIP. Only after the $10,000 was exhausted would claims be filed against other coverage -- including the victim's own health insurance or the other driver's bodily injury liability coverage, if carried.
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