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Southwest Florida Injury Lawyer Blog

Court Explains Requirements in Fashioning an Equitable Distribution in Florida

Published on: January 23, 2021 | Lusk, Drasites & Tolisano, P.A.

Typically, one of the biggest points of contention in divorce matters is what constitutes marital property and how such property should be divided. While courts have the discretion to divide assets in a fair and equitable manner, they must engage in certain steps prior to doing so; otherwise, their judgments may be subject to reversal. This was demonstrated in a recent Florida ruling, in a divorce case in which the appellate court reversed the trial’s final ruling with regard to equitable distribution due to the court’s failure to make specific findings of fact regarding the assets. If you are in contemplating ending your marriage, it is advisable to consult a skillful Florida divorce attorney to assist you in seeking a fair dissolution.

Facts of the Case

It is reported that the husband and the wife decided to end their marriage, and the wife filed for divorce. The couple had substantial assets, and the proceeding regarding the dissolution of the marriage lasted eight days. At the end of the trial, the court dissolved the marriage and developed an equitable distribution scheme, but failed to identify, value, and distribute the bulk of the parties’ liabilities and assets. The husband appealed.

Requirements in Fashioning an Equitable Distribution

Under Florida law, a court developing an equitable resolution of marital assets must make specific factual findings identifying the parties’ assets and liabilities and their classification and value. A final judgment issued absent such findings must be reversed. Thus, the court reversed the trial court judgment with regard to equitable distribution. Continue reading ›

Florida Court Discusses Damages in Slip and Fall Cases

Published on: January 18, 2021 | Lusk, Drasites & Tolisano, P.A.

Many people throughout Florida regularly shop at discount department stores for basic necessities. While people expect these stores to be safe, it is not uncommon for dangerous conditions to be present that unexpectedly cause them to slip and fall, and people hurt in such accidents may be awarded significant damages. The manner in which damages are calculated was the topic of a recent Florida opinion, in a case in which the plaintiff appealed a verdict in which she was granted compensation for the cost of past medical treatment but no damages for future treatment or for pain and suffering. If you are injured in a fall, it is advisable to meet with a proficient Florida premises liability attorney to determine your potential claims.

Facts of the Case

It is reported that the plaintiff was shopping at the defendant discount department store when she slipped and fell due to a puddle of water on the floor. She sustained knee and back pain as a result of the fall and was ultimately diagnosed with a dislocated patella and herniated discs. Her injuries were treated conservatively, but she continued to suffer symptoms. She was deemed an unsuitable candidate for surgery. She then filed a lawsuit against the defendant, seeking damages for the harm caused by the defendant’s negligence. The case proceeded to trial, and the jury ultimately found in favor of the plaintiff, awarding her compensation for past medical expenses. The jury declined to grant her damages for pain and suffering or future medical expenses, however, and so she appealed.

Damages Under Florida Law

On appeal, the court explained that under Florida law, there is a clear distinction between past and future damages, as past damages can be closely examined, while future losses are less certain. Thus, due to the speculative nature of future damages, the fact finder has ample discretion in determining if they are appropriate. In the subject case, the court noted that the issue of whether future damages were warranted was hotly contested throughout the trial. The court noted, however, that the refusal to grant such damages aligned with the evidence. Continue reading ›

Florida Court Discusses Grounds for Granting Alimony

Published on: January 15, 2021 | Lusk, Drasites & Tolisano, P.A.

In many divorce cases, the most contested issues are how property should be divided and whether either party is entitled to spousal support. Spousal support may be warranted in some instances, but the court must make certain factual findings prior to issuing an order dictating that one spouse must provide the other with financial support; otherwise, the ruling may be unjust. In a recent Florida opinion in a case in which the husband appealed an order granting the wife support, the issuing court explained when alimony is appropriate. If you decided to end your marriage, it is prudent to seek the assistance of a dedicated Florida divorce attorney to help you fight to protect your rights.

Facts of the Case

Allegedly, the husband and the wife were married for more than twenty years before the wife filed for divorce in 2016. Throughout most of the marriage, the husband worked as a neurologist while the wife was a homemaker. He suffered a heart attack four years after they were married and reduced his work hours while receiving disability payments. In the years before the end of the marriage, the wife resumed working as a physical therapist. At the time of the divorce, the husband earned approximately $200,000 per year, while the wife earned around $85,000. The wife sought and received alimony in the amount of $2,000 per month. The husband appealed, arguing the court failed to make the factual determinations necessary to support the order.

Spousal Support Under Florida Law

Under Florida law, a court determining whether to award alimony must first make a specific determination of fact as to whether either spouse needs alimony. The court must evaluate whether either party has the ability to pay alimony as well. In the subject case, the appellate court found that the trial court failed to make the detailed findings required under Florida law. Continue reading ›

Florida Court Discusses Evidence of Comparative Negligence in Car Accident Cases

Published on: January 8, 2021 | Lusk, Drasites & Tolisano, P.A.

A person injured in a car accident will often pursue claims against the driver that caused the accident. In many instances, the person named as a defendant will attempt to evade liability by arguing that the plaintiff, in some way, contributed to causing the accident. For example, if a pedestrian lacks the capacity to walk safely and is struck by a vehicle, the driver may seek to introduce evidence of the pedestrian’s incapacitation in an effort to avoid being found at fault. The evidence that is admissible to demonstrate contributory negligence was the topic of a recent Florida ruling, in a case in which the plaintiff, who was intoxicated, was struck by the defendant driver. If you were hurt in a collision, it is in your best interest to speak to a skillful Florida car accident attorney to assess your rights.

The Evidence Admitted at Trial

It is reported that the plaintiff was walking along the side of a highway when he was struck by a car driven by the defendant. Police investigating the accident determined that the plaintiff had been drinking earlier in the day after he said he consumed two alcoholic beverages. He admitted to being “buzzed” and stated he did not know where he was going and was attempting to call a friend when he was struck. The defendant saw the plaintiff prior to the collision and was not distracted or impaired due to drugs or alcohol.

Allegedly, after he saw the plaintiff, he moved into the other lane to give him more room but struck him regardless. During the trial, the defendant admitted evidence from a toxicologist indicating that the plaintiff’s blood alcohol content at the time of the accident was .18 and that the plaintiff was impaired. Following the final verdict, the plaintiff appealed, arguing the introduction of intoxication evidence was improper.

Court Discusses Federal Pleading Standards in a Truck Accident Case in Florida

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

Collisions involving tractor-trailers typically cause significant injuries, and people hurt in such accidents will often pursue damages from both the truck driver and the company that employed the driver in a civil lawsuit. Even if it appears that a trucking company’s or driver’s liability is clear, though, it is essential that any claims against them are properly pled; otherwise, a plaintiff’s claims may be rejected. This was established in a recent Florida ruling in which the court dismissed the plaintiff’s claims due to the vague and cursory manner in which they were pled. If you sustained losses in an accident involving a commercial truck, it is advisable to speak to a seasoned Florida truck accident attorney about your options.

The Accident

It is reported that the plaintiff was a passenger in a vehicle that was involved in a collision with a commercial truck owned by the defendant company and operated by the defendant driver. The plaintiff sustained significant injuries and therefore filed a lawsuit against the defendants in state court. The defendant company moved the matter to federal court and filed a motion to dismiss, arguing that the plaintiff had not pled facts sufficient to allow him to recover on his claims against the company. The plaintiff amended his complaint multiple times, and each time the defendant company filed a motion to dismiss asserting the same argument. The court then ruled on the matter, agreeing with the defendant and dismissing the plaintiff’s claims without leave to amend.

Federal Pleading Standards

Under the federal standards, a court faced with a motion to dismiss must assume that the factual assertions set forth in a complaint are true. Further, the court must draw all reasonable inferences in favor of the plaintiff. A plaintiff must still meet certain pleading requirements, however. Specifically, while the exact facts out of which the plaintiff’s alleged harm arose are not necessary, a complaint should nonetheless provide a defendant with adequate notice of the plaintiff’s claim and the circumstances out of which it arose.

Florida Court Reverses Equitable Distribution and Child Support Order

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

Typically, when people decide to end their marriage, the court will be tasked with resolving issues such as the division of property and whether either party is entitled to alimony or child support. If the court rules incorrectly or relies upon inaccurate evidence, though, either party can appeal the court’s findings. The grounds for seeking and obtaining a reversal of a trial court ruling in a divorce action was the topic of a recent opinion in a Florida matter. If you wish to end your marriage, it is advisable to meet with a knowledgeable Florida divorce attorney to discuss your rights.

The Trial Court’s Ruling

Allegedly, the parties sought to end their marriage via divorce. After the court issued a final judgment dissolving the marriage, the husband appealed, and the wife cross-appealed. Specifically, the husband took issue with the equitable distribution, among other things, and the wife objected to the child support award. Upon review, the court reversed the trial court ruling and remanded the matter for further proceedings.

Reversal of Orders in Divorce Matters

Initially, the husband challenged the equitable distribution issued by the trial court. The appellate court explained that a trial court’s distribution of marital liabilities and assets is assessed under the abuse of discretion standard. Further, the final division of marital assets has to be supported by factual findings that are based on substantial competent evidence.

Florida Court Discusses Underinsured Motorist Coverage

Published on: December 17, 2020 | Lusk, Drasites & Tolisano, P.A.

It is not uncommon for a collision on a highway to cause traffic to slow down. Unfortunately, backups often lead to additional crashes, as approaching drivers may not be able to stop in time to avoid an accident. Drivers hurt in collisions are often owed damages from other drivers. If the drivers responsible for their harm lack the means to compensate them fully for their losses, they may be owed underinsured motorist benefits from their insurers as well. Recently, a Florida court addressed the unique issue of whether harm suffered while a motorist was stuck in collision-related traffic arose out of one or two accidents. If you were injured in a crash by a driver with inadequate insurance, you should speak to a dedicated Florida car accident attorney regarding your rights.

The Collisions Leading to the Decedent’s Death

It is reported that the plaintiff insured the decedent, who was killed in a car accident in 2019. At the time of the crash, the decedent was stopped due to a traffic back up because of an accident that occurred two miles away. A dump truck driver who was speeding failed to slow down in time to avoid a collision that struck the decedent. The dump truck flipped over and landed on top of the decedent’s vehicle, causing his death.

It is alleged that the dump truck driver lacked adequate insurance to fully compensate the decedent’s estate for the losses caused by the decedent’s death. Thus, the estate filed an underinsured motorist claim with the plaintiff. The parties disputed whether the estate was entitled to the policy limits for one or two accidents. As such, the plaintiff filed a declaratory judgment action and subsequently filed a motion for summary judgment.

Florida Court Discusses Liability of Corporate Officers for Accidents

Published on: December 12, 2020 | Lusk, Drasites & Tolisano, P.A.

Many retail stores are national corporations that designate executive staff to overlook each store location. Thus, if a person is hurt in an accident in a store, the question may arise as to whether the corporation, an executive officer, or both are liable for the individual’s harm. The liability of a corporate officer of a retail store for injuries sustained in a slip and fall accident was the topic of a ruling recently issued by a Florida court. If you were hurt while shopping, you might be owed damages, and you should speak to a skillful Florida premises liability attorney to evaluate your options.

The Plaintiff’s Injury and Subsequent Lawsuit

It is reported that the plaintiff was a customer at the defendant’s store when she was injured in a slip and fall accident. The cause of her fall was wine that had leaked out of a shopping basket and onto the floor. The defendant executive team leader was working at the time but did not see the plaintiff fall. He spoke to the plaintiff after the fall but denied being aware of the spill or causing the spill.

Allegedly, the plaintiff filed a lawsuit against the defendants. The defendants moved the matter to federal court, arguing that the defendant executive, who would destroy complete diversity, was fraudulently joined. The plaintiff filed a motion to remand, which the court ultimately granted.

Florida Court Explains Probable Cause for Issuing a Warrant in a DUI Case

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

In many instances in which a person is charged with a DUI crime in Florida, it is because they are stopped while driving a vehicle under the influence of alcohol or drugs. If a person is suspected of causing a collision while intoxicated but the police have no proof that the person drove the vehicle involved in the crash, they may seek a warrant to obtain evidence such as blood samples. Recently, a Florida court issued an opinion in a DUI case, reversing an order suppressing evidence obtained via multiple search warrants, and in doing so explained the probable cause the State must demonstrate in order to obtain a warrant. If you are charged with a DUI offense, it is advisable to speak to a seasoned Florida DUI defense attorney to assess your options.

The Accident and Subsequent Investigation

It is reported that a fatal accident occurred at approximately 2:30 am at an intersection in Orange County. The passenger and driver of one vehicle both died due to their injuries. The other vehicle involved in the crash was registered to the defendant, who was sitting in the driver’s seat. He had seat belt burns across his chest, and the passenger of the vehicle stated that the defendant was impaired and drank too much to drive.

Allegedly, the defendant was transported to the hospital, where he refused to submit to a blood draw. The officer investigating the accident obtained a warrant and was permitted to seize a sample of the defendant’s blood. A second warrant was obtained a few days later to allow the office to obtain evidence from the defendant’s vehicle, and a third warrant was issued a month later to obtain a DNA sample from the defendant to determine if it matched DNA obtained from the car. The defendant filed a motion to suppress the evidence obtained from the warrants arguing the police lacked probable cause to seek such warrants. The trial court granted the motion, and the State appealed.

Florida Court Discusses Choice of Law in Product Liability Cases

Published on: December 5, 2020 | Lusk, Drasites & Tolisano, P.A.

When a dangerous product causes an injury, the injured person will often file a civil lawsuit seeking damages from the product manufacturer. Typically, the injured party and the manufacturer will reside in different states. Thus, the question of which state’s law applies will often have to be resolved by the courts. Recently, a Florida court addressed the issue of what state’s laws apply with regard to punitive damages claims in a product liability case filed against a Massachusetts company. If you were harmed by an unsafe product, you might be owed damages, and it is in your best interest to meet with a trusted Florida product liability attorney to discuss your rights.

The Plaintiff’s Harm

It is reported that the plaintiff underwent a procedure during which transvaginal mesh produced by the defendant was implanted to treat urinary incontinence. She then suffered severe side effects and filed a lawsuit as a product liability against the defendant in a district court in Florida. As part of her complaint, she sought punitive damages. Over a year into the litigation of the matter, the defendant filed a motion asking the court to govern the punitive damages claim under Massachusetts law. Ultimately, the court denied the motion.

Choice of Law Analysis in Product Liability Cases

The court explained that parties could stipulate to, or waive, the law that will govern claims or issues in a federal diversity case. In the subject case, the court noted that the defendant’s motion was untimely, as it was filed several months after the deadline for dispositive motions had passed. Additionally, it was not filed due to new facts, as the defendant possessed the information that formed the basis of its request since the onset of the case. Thus, the court denied the motion as untimely.