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Southwest Florida Injury Lawyer Blog

Florida Court Weighs Admissibility of Late Evidence in a Negligence Case

Published on: October 24, 2020 | Lusk, Drasites & Tolisano, P.A.

In Florida, there are rules that dictate when parties must produce evidence in support of their claims and defenses and when witnesses, including experts, must be disclosed. Such rules are designed to ensure a fair trial and to prevent one party from ambushing the other with previously unforeseen information on the eve of trial. If a party fails to comply with deadlines regarding discovery and disclosure, it may have an adverse impact, as demonstrated in a recent car accident case in Florida in which the plaintiff’s late-produced expert was prohibited from testifying. If you suffered injuries in an accident, it is important to speak to a knowledgeable Florida personal injury attorney regarding what you must prove to recover damages.

History of the Case

It is alleged that the plaintiff, who was operating a power chair, was struck by a car when she attempted to cross a Florida highway in a construction zone. She filed a lawsuit against the driver and the construction company, setting forth negligence claims alleging, in part, that she suffered psychological trauma due to the accident. During discovery, both the defendant’s and the plaintiff’s expert psychiatrists testified that the plaintiff was not suffering from PTSD and issued reports reflecting that testimony.

It is reported that days before trial, however, the plaintiff produced a second report from her expert wherein the expert stated the plaintiff suffered from PTSD and that it was caused by the accident. The defendants filed a motion in limine, asking the court to preclude the newly produced evidence, and the motion was granted. The jury found that plaintiff did not suffer any harm in the accident and ruled in favor of the defendants, after which the plaintiff appealed, arguing the trial court erred in precluding her second expert report.

Florida Court Discusses Grounds for Awarding Durational Alimony

Published on: October 20, 2020 | Lusk, Drasites & Tolisano, P.A.

While many people think of women as being the primary caretakers for children, it is not uncommon for a married couple to agree that the husband should remain at home to care for the couple’s children while the wife earns an income. As such, if a marriage in which the husband doesn’t work ends, the husband may seek alimony from the wife. In a recent Florida divorce case, the court discussed when alimony is appropriate and what factors should be considered in determining whether it should be granted. If you or your spouse intend to file for a divorce, it is prudent to meet with a trusted Florida family law attorney to determine how the dissolution of your marriage may impact you financially.

Factual and Procedural History

It is alleged that the husband and the wife married in 2006, after which they had two children. The couple agreed that the husband would stay at home to care for the children, and he did not work from 2011 to 2017. When he returned to the workforce, he got a job in retail, earning approximately $1,400.00 per month. The wife worked as an auditor, earning about $9,000.00 a month, and received annual payments from a family trust fund.

Reportedly, in 2017, the wife filed a petition for divorce, and the husband filed a counter-petition in which he sought alimony. In the final judgment issued in 2018, the court granted the husband $2,000.00 per month in alimony for sixty months and directed the wife to pay child support to the husband. The wife appealed, arguing that the trial court committed an error in awarding the husband durational alimony.

Florida Court Reverses a Directed Verdict in a Negligence Case

Published on: October 14, 2020 | Lusk, Drasites & Tolisano, P.A.

Negligence requires a plaintiff to prove multiple elements. In other words, the plaintiff must not only show that the defendant violated the applicable standard of care, but also that the defendant’s departure led to the plaintiff’s harm. As such, in most cases, negligence is an issue that must be decided by the jury. This was illustrated in a recent Florida car accident case in which an appellate court vacated the trial court’s order issuing a directed verdict in favor of the plaintiff, as the issue of causation was disputed. If you were hurt in a car accident, it is advisable to speak to a proficient Florida personal injury attorney to assess what damages you may be able to pursue.

Facts of the Case

It is reported that the defendant’s driver, who was operating a tractor-trailer, was employing a back-up maneuver to deliver goods to a business on a highway. The maneuver caused the truck to be placed into a jackknife position on the road. The delivery took place in the early morning hours, and the defendant had the lights on the vehicle illuminated. The plaintiff was traveling down the highway at the same time when he suddenly approached the truck. He was unable to stop in time to avoid a collision and ultimately suffered extensive injuries.

Allegedly, the plaintiff filed a lawsuit against the defendant, setting forth claims of negligence. At trial, the defendant conceded that the driver negligently maneuvered the truck. He argued, however, that the plaintiff could have been at fault for the accident, and the evidence presented to the jury would ultimately determine the issue of liability. Following the close of the plaintiff’s case, the court issued a directed verdict stating that the defendant proximately caused the plaintiff’s harm. After the trial concluded, the defendant appealed.

Court Discusses Admissibility of Statements in Accident Reports Under Florida Law

Published on: October 9, 2020 | Lusk, Drasites & Tolisano, P.A.

In many cases in which parties are involved in a car accident, the police will investigate the collision and take statements from the drivers and passengers involved and any witnesses who observed the event. While such statements may contain helpful or incriminating evidence, it is unlikely that they can be introduced during a trial in the Florida courts. The reasoning behind precluding statements from a police report during a trial was recently discussed in a Florida case in which the court denied the plaintiff’s motion for reconsideration of an order denying her right to introduce such information. If you were injured in a car accident, it is important to retain a seasoned Florida personal injury attorney who will fight to help you protect your interests.

Facts of the Case

It is alleged that the defendant drove onto a sidewalk and struck and killed the plaintiff’s decedent. A Florida police officer that investigated the accident took statements from the defendant and her passenger and drafted a report that included the findings of his investigation, including the statements. The plaintiff filed a lawsuit against the defendant, alleging wrongful death, and negligence claims. Prior to trial, the defendant filed a motion in limine, asking the court to preclude the accident report and the statements therein from admission into evidence. The court granted the motion, after which the plaintiff filed a motion for reconsideration.

Grounds for Granting a Motion for Reconsideration

Under Florida law, in order for a motion for reconsideration to be granted, a party must show why the court should reevaluate its prior decision and must set forth strongly convincing law or facts that will persuade the court to reverse its prior ruling. Generally, a court will accept three grounds for reconsidering an order: a change in the controlling law, new evidence that was previously unavailable, or the need to prevent manifest injustice by correcting an error. The party asking the court to reconsider an order bears the burden of proving a reconsideration is warranted.

Florida Court Explains Deadline for Enforcing Marital Settlement Agreements

Published on: October 6, 2020 | Lusk, Drasites & Tolisano, P.A.

It is not uncommon in divorce actions for the parties to develop a marital settlement agreement, which is essentially a contract that sets forth their rights and obligations, or for the court to incorporate the agreement into the final judgment that dissolves the marriage. If a party refuses to comply with the terms of a marital settlement agreement, however, a dispute may arise as to whether an action to enforce the agreement is subject to the statute of limitations that applies to contracts or the one that applies to judgments. Recently, a Florida court addressed this issue in a case in which the wife waited almost twenty years to file a motion to enforce a divorce judgment. If your spouse refuses to comply with the terms of your marital settlement agreement, it is advisable to contact a seasoned Florida family law attorney to assess your rights and your options for seeking enforcement.

Factual Background

It is alleged that the husband and the wife entered into a marital settlement agreement in 1997. The agreement divided their marital property, business assets, and debts, and dictated that the husband was to pay the wife close to half a million dollars, either in a lump sum or in five principal payments, plus interest, which were due each year beginning in 2001. The agreement was incorporated into the final judgment dissolving the marriage, which was issued in April 1997.

It is reported that the husband failed to make any payments as required under the agreement, however. Then, in 2017, one day shy of the twentieth anniversary of the entry of the divorce judgment, the wife filed a motion to enforce the judgment. The court granted the motion and ordered the husband to pay close to one million dollars to the wife based on the amount of principal payments plus accrued interest. The husband appealed, arguing that the wife’s motion was barred by the statute of limitations.

Court Addresses the Presumption of Liability in Florida Rear-End Accidents

Published on: September 29, 2020 | Lusk, Drasites & Tolisano, P.A.

Many people assume that when one driver rear-ends another, there is no dispute as to who is at fault for the accident. In many lawsuits arising out of rear-end collisions, however, the defendant driver will argue that the plaintiff’s actions contributed to the accident in some way, and therefore liability is not clear based upon the sheer fact that the defendant rear-ended the plaintiff. The evidence needed to overcome the presumption of a defendant’s liability in a case arising out of a rear-end crash was recently discussed by a Florida court. If you were hurt in a rear-end accident, you might be owed damages from the driver that hit you, and it is in your best interest to speak to an experienced Florida personal injury attorney as soon as possible.

Facts of the Case

It is reported that the plaintiff was driving an SUV on a highway in Florida when he was struck from the rear by a commercial truck that was driven by the defendant driver and owned by the defendant company. The plaintiff suffered severe injuries due to the accident, including injuries to his right arm that required surgical repair. As such, he filed a lawsuit alleging negligence claims against the defendants. Following the close of discovery, the plaintiff filed a motion for summary judgment, arguing that he was entitled to judgment as a matter of law on his claims. The defendants opposed the motion, alleging that the plaintiff’s negligence contributed to bringing about the accident, and therefore, the issue of liability was disputed.

The Presumption of Liability in Florida Rear-End Accidents

In Florida, there is a presumption that the rear driver in a rear-end collision is negligent. The presumption is rebuttable, however. Specifically, the Florida Supreme Court has ruled that as tort recovery in Florida is guided by the principles of comparative negligence, the presumption that a driver’s negligence was the sole cause of a rear-end collision can be rebutted, and its strength weakened if the defendant produces evidence that is sufficient to show that the front-driver acted negligently in the operation of his or her vehicle.

Florida Court Discusses Grounds for a Change of Venue

Published on: September 25, 2020 | Lusk, Drasites & Tolisano, P.A.

Generally, a plaintiff has the right to choose where to file a personal injury case. Even if a court has jurisdiction over a matter, however, a plaintiff’s chosen forum may be overturned if it is determined that another venue is more appropriate. This was demonstrated in a recent Florida personal injury case in which the court determined that the action should have been brought in Georgia and ultimately transferred the case. If you were hurt due to the careless acts of another party, it is prudent to speak to a diligent Florida personal injury attorney regarding your rights and what you must demonstrate to recover damages.

Facts and Procedural History

It is reported that while the plaintiff was staying at a hotel in Georgia, she slipped and fell on a wet bathroom floor, which caused her to suffer a cut lip and shoulder injuries. She subsequently filed a personal injury lawsuit against the defendants, which were the company that owned the hotel, and the parent corporation and franchisor of the hotel chain. The defendants are both Delaware corporations. The defendants then filed motions to dismiss the plaintiff’s complaint for lack of jurisdiction, or in the alternative, to transfer venue to the district court in Georgia in the jurisdiction where the defendant hotel was located.

Grounds for Transferring Venue

Upon review, the court noted that while the plaintiff alleged in her complaint that the venue was proper because she resided in Florida, a plaintiff’s domicile is not a basis for venue. The court went on to explain that, in the interest of justice and pursuant to 28 U.S.C. 1404(a), the action should be transferred to a Georgia court.

Florida Court Vacates Multiple Convictions for the Same Crime

Published on: September 22, 2020 | Lusk, Drasites & Tolisano, P.A.

In Florida, it is a crime to leave the scene of a car crash if the collision causes an accident or death. As demonstrated in a recent case, however, the act of doing so only constitutes a single crime. In other words, a person cannot be charged more than once with an offense related to leaving the scene of an accident, as multiple charges that stem from a singular incident may be considered a double jeopardy violation. If you were charged with one or more crimes following a car accident, it is prudent to speak to an assertive Florida criminal defense attorney to assess what arguments you may be able to set forth in your favor.

Facts of the Case

Allegedly, the defendant was driving his car along a Florida highway and had one passenger in his vehicle. He suddenly struck another car, resulting in the sudden death of the driver. Additionally, the impact caused the second vehicle to crash into a third vehicle that was occupied by a passenger and a driver. The two people in the third vehicle and the defendant’s passenger all suffered injuries. The defendant left the scene of the accident, however, without trying to render aid to any of the injured parties.

It is reported that the defendant was charged with numerous crimes arising out of the accident, including one count of leaving the scene of an accident that involved death, and three counts of leaving the scene of an accident involving injury. A jury convicted him as charged, after which he appealed, arguing that his convictions violated double jeopardy.

Florida Court Discusses Affirmative Defenses in Personal Injury Cases

Published on: September 15, 2020 | Lusk, Drasites & Tolisano, P.A.

It is not uncommon for a defendant in a personal injury case to assert what are known as affirmative defenses, which attempt to shift harm for a plaintiff’s injuries onto the plaintiff. While affirmative defenses are generally permitted, there are some instances in which a plaintiff may have grounds to ask the court to strike certain defenses. What defenses a defendant can assert was recently discussed in a Florida case in which the plaintiff sought damages from a cruise ship line. If you or a loved one suffered harm due to the negligence of an entity that owns cruise ships, it is wise to confer with a skillful Florida personal injury attorney to evaluate the strengths and weaknesses of your potential claims.

Facts of the Case

It is reported that the plaintiffs, a husband and wife, entrusted their eighteen-month-old daughter to the care of her grandfather while they were on a cruise operated by the defendant. Tragically, the grandfather lifted the toddler up to a window, and she fell 150 feet to her death. The plaintiffs then filed a lawsuit against the defendant, alleging that its negligence led to their daughter’s untimely passing. The defendant filed an answer to the plaintiff’s complaint and asserted numerous affirmative defenses, many of which attributed liability to the grandfather. The plaintiffs moved to strike these defenses, arguing they attempted to assign fault to a person that was not a party to the case.

Affirmative Defenses Permissible Under Maritime Law

Under the relevant rules of procedure, a court may strike any matter from a pleading that is scandalous, impertinent, immaterial, or that constitutes an insufficient defense. While granting a motion to strike is a drastic remedy, it will be granted in cases in which it is clear that the matter which will be stricken has no bearing on the subject of the litigation, such as when the recovery sought is unavailable as a matter of law.

Florida Court Discusses International Divorce Cases

Published on: September 11, 2020 | Lusk, Drasites & Tolisano, P.A.

Litigating a family law case in the proper jurisdiction is essential to protecting the rights of all involved. In divorce cases in which a couple has resided in more than one jurisdiction throughout the course of their marriage, the issue of what state or country possesses the authority to rule over the proceedings may be hotly contested. Recently, a Florida court discussed the process of determining where jurisdiction over a divorce matter lies, in a case in which divorce proceedings were filed in both Spain and Florida. If you or your spouse seek to end your marriage, it is prudent to speak to a dedicated Florida family law attorney to discuss what steps you can take to safeguard your interests.

Factual and Procedural History

It is reported that the husband and wife, both of whom are citizens of Spain, were married in Spain in 2008. They had two children, after which they moved to Southern Florida. The couple was charged with crimes involving a bank in Luxembourg, after which they became involved in a disagreement over a contract the husband asked the wife to sign. The wife then took the children to another Florida city, after which the husband filed an emergency petition to retrieve the children and a divorce petition.

Allegedly, the husband then filed a second divorce petition in Spain. He subsequently dismissed the Florida petition, which prompted the wife to file her own divorce petition in Florida. The husband served the wife with the Spanish divorce petition and then filed a motion to stay the Florida action. The wife had not yet served the husband with her divorce petition. The trial court granted the husband’s motion, finding that Spain had jurisdiction over the matter, after which the wife appealed.