Duke Fagan

3 New Changes to Florida’s Negligence Laws You Need to Know.

Wed, 03 Jan 2024 18:13:33 GMT

Florida recently made some important changes to its negligence laws. Each one of these changes impacts the way in which personal injury cases will be pursued in the future.

In what has been referred to as “sweeping tort reform,” on March 24, 2023, Florida enacted tort reform bill HB 837. This new law makes significant changes to Florida’s negligence liability law. Going forward, cases filed after March 24, 2023, will be subject to these new laws.

Below, we will discuss only 3 of the major changes made to Florida’s laws that personal injury plaintiffs and defendants should know about, so please consult with an experienced Florida personal injury attorney to learn about all the changes in the law and how they might apply to you.

3 New Changes to Florida’s Negligence Laws You Need to Know.

1. Florida adopts a modified comparative negligence standard

By far, the most dramatic change made to Florida’s negligence liability law is the move from being a “pure comparative law” state to a “modified comparative law” state.

What does this mean?

Well, before March 24, 2023, Florida followed the “pure comparative negligence” rule. This rule comes into play when the judge or jury tries to determine the percentage of fault between parties to a personal injury case.

So, for example, if a plaintiff was injured in a car accident because the defendant made an unsafe left turn, but at the time of the accident, the plaintiff was speeding, the judge or jury will have to decide how much each party was at fault for the accident. Under the “pure comparative negligence” rule, so long as the plaintiff was not 100% at-fault for the accident, he could still recover for his damages. So, for example, even if the plaintiff was 70% at fault because he was speeding, he could still recover 30% for his damages. In fact, even if he was 99% at-fault, he could still recover 1% for his damages.

Now, however, Florida will no longer be following a “pure comparative negligence” rule. Instead, Florida’s new law adopted the “modified comparative negligence” rule. Under this rule, a plaintiff recovers nothing if he is more than 50% at-fault for the accident.

What this means, then, is that after March 24, 2023, a plaintiff must prove he was less than 50% at-fault to recover damages.

This new rule does not apply, however, to wrongful death cases arising out of medical malpractice.

2. Changes to bad-faith insurer liability

In Florida, a bad-faith insurance claim is when an insurer fails to attempt to settle a claim in good faith when it should have. It applies in situations when the insurer did not act honestly or fairly.

Florida’s new tort reform bill changes bad-faith insurer liability. Before the enactment of the tort reform bill, Florida’s law did not explicitly define what conduct constituted “bad faith” on behalf of an insurer.

The new law makes it clear that mere negligence on the part of an insurer is not enough to constitute “bad faith.” There must be a showing of more than mere negligence.

The bill also imposes a reciprocal duty of good faith on insureds. The law requires all insureds and third-party claimants to act in good faith when providing information to an insurer or when making claims or attempting to settle claims. This new duty does not, however, create a cause of action against the insured or third-party claimant if it is breached.

Among other changes, the new law creates “safe harbor” for insurers. An insurer can avoid bad-faith litigation if, within 90 days of receiving a claim, it tenders either the policy limits or the amount the plaintiff demands—whichever is less.

Bad-faith insurance claims frequently arise in the context of personal injury cases, so to learn more about the new changes in this area, please consult with a Florida personal injury attorney .

3. Changes to Attorney’s Fee Recovery

The third new change we think personal injury plaintiffs and defendants need to know about concerns the recovery of attorney’s fees.

Before March 24, 2023, in Florida, an insured could recover attorney’s fees in accordance with Florida’s statutory law (referred to as “one-way attorney fee statute”) if they were successful in their suits against insurance carriers in personal injury protection (PIP) lawsuits.

The new law has changed this to narrow recovery to only declaratory relief actions brought to determine insurance coverage where there has been total coverage denial of a claim. This means if there is a partial coverage denial, the insured cannot recover one-way attorney’s fees.

The changes to Florida’s negligence liability laws are sweeping and significant. Consult with an experienced Florida personal injury lawyer to learn more about these changes and how they may affect you.

Orange Park, Florida, Personal Injury Attorneys.

Our team of personal injury attorneys is dedicated to helping those who are injured through the negligence of another. If you have been injured due to the negligence of another, contact us or call the firm at (904) 777-JOHN . Our main office is in Orange Park, but we serve clients throughout Florida. We have consulting offices in Palatka, Middleburg, Keystone, Starke, Gainesville, and Ocala.

Fragility and Foreseeability in Personal Injury Cases. A Brief Look at Florida’s “eggshell plaintiff” Rule

Mon, 18 Dec 2023 15:40:55 GMT

Foreseeability of harm and the fragility of a plaintiff are two concepts that play an important role in personal injury cases.

The issue of liability itself, as well as the extent of that liability, turns on these two concepts.

Indeed, as we will discuss below, the “eggshell plaintiff” rule renders a defendant liable for the full extent of a plaintiff’s injuries—even if those injuries were not foreseeable and even if the damage was far more extensive than could possibly have been foreseen.

Foreseeability

In personal injury and tort cases, the legal concept of foreseeability is pivotal to the question of liability. It defines a defendant’s duty and proximate cause.

According to the Florida courts, foreseeability determines whether a defendant’s conduct created a risk of harm to others as well as whether, and to what extent, the defendant’s conduct caused the plaintiff’s injuries.

As a general rule, everyone owes every other individual the duty to behave as a reasonable person would. When litigating tort cases, such as personal injury cases, the focus is on whether the defendant had a duty to the plaintiff but breached that duty by acting unreasonably—either intentionally or because of carelessness (i.e., negligence).

To prove one’s case, it is necessary to prove four essential elements:

Duty

Breach

Causation

Damages

The concept of foreseeability is concerned with both duty and cause.

To impose a legal duty on a defendant, his conduct must create a foreseeable risk of injury to others. To be clear, the defendant need not foresee every conceivable risk his conduct could create. Rather, only general, reasonable foresight is required to create a duty.

For example, if a defendant runs the red light, it is foreseeable that he could hit a pedestrian or another car moving through the intersection. Applying reasonable foresight to our example, drivers have a duty to not run the red light because it is foreseeable that doing so would cause a risk to others on the road.

When it comes to the legal concept of foreseeability and causation, however, things get a lot more difficult.

Proximate cause for a negligence case is often referred to as “but for” causation. In other words, “but for” the defendant's conduct, the plaintiff would not have been injured. Proximate cause focuses on “ whether and to what extent the defendant’s conduct foreseeably and substantially caused the specific injury that actually occurred .” To prove a negligence case, a plaintiff must show that the defendant’s actions directly caused or substantially contributed to the plaintiff’s injuries so that it can be said that “but for” the defendant's actions, the plaintiff would not have been injured.

Understanding foreseeability and the role it plays in determining a defendant’s liability in a personal injury case is not easy. Until you consult with an experienced Florida personal injury attorney , you will not be able to accurately assess its impact on the facts of your case.

We now turn to the issue of the fragility of the plaintiff.

Fragile Plaintiffs and the “Eggshell Plaintiff” Rule. What’s it all about?

Sometimes the injuries a plaintiff suffers far exceed what may have been a “foreseeable” injury.

For example, if the defendant kicks the plaintiff in the leg, it may be foreseeable that the plaintiff could suffer bruises. But what happens if that same plaintiff happens to have cancer or a tumor in that spot, and the kick causes the plaintiff to lose that leg or causes his death?

While the defendant may not have been able to foresee that a kick in the leg could trigger life-threatening or extensive injuries, should an injured plaintiff not recover for the full extent of his injuries just because he had a preexisting medical condition?

The law believes not. Hence the legal theory that you “take your plaintiff as you find him” and the “eggshell plaintiff” rule (also called the “eggshell skull rule”).

The “eggshell plaintiff” rule makes defendants responsible for the full extent of the injuries inflicted on a plaintiff—even if that plaintiff is fragile or has preexisting medical, physical, or emotional illnesses, disabilities, or injuries that make him (or her) more susceptible than the average person.

The “eggshell plaintiff” rule is based on the public policy belief that even though the defendant could not have foreseen the harm that would result because he could not know that the plaintiff was more susceptible than the average person, nevertheless, it is only fair that the defendant bears the burden of the full extent of a plaintiff’s injuries since it was the defendant who caused those injuries in the first place.

The “eggshell plaintiff” exception is not easy to prove. But it is available for those with preexisting medical conditions to allow them to receive the full compensation they deserve. Work with a Florida personal injury lawyer to find out if this rule applies to you.

John Fagan is Here to Help.

John Fagan and his experienced team are dedicated to helping those who have been injured due to the negligence of another. Contact us for your free consultation now, or call our firm at 777-JOHN . We serve clients throughout Florida. Our main office is in Orange Park. We have consulting offices in Palatka, Middleburg, Keystone, Starke, Gainesville, and Ocala.

Intervening Superseding Cause: What are These Concepts?

Mon, 11 Dec 2023 14:59:30 GMT

At the heart of any personal injury case is the issue of the defendant’s liability. All personal injury cases turn on whether the defendant is indeed liable for a plaintiff’s injuries and to what extent (as in cost) he can be held liable for the plaintiff’s injuries.

The legal concepts of intervening or superseding causes relieve a defendant of liability (or a portion of it). As we will explain further below, intervening or superseding causes can relieve a defendant of liability because they act to “break the chain” of causation.

Proximate Causation: What is it?

To be liable for a plaintiff’s injuries, it is axiomatic that the defendant’s actions must be the “proximate cause” of a plaintiff’s injuries. Proximate cause requires that the defendant’s actions be the “ legal cause” of a plaintiff’s injuries as well as the “cause in fact. ”

Essentially, this means that the defendant’s actions (or omissions) must have been the direct cause of the plaintiff’s injuries, and it was foreseeable that someone would be injured as a result of the defendant’s actions (or omissions).

The legal concept of proximate causation is a thorny one that is not always easy to unravel. It combines, as one scholar puts it , the factual determination of who did it with policy considerations regarding who should pay. Resolving the tension between these two factors is not always easy to do.

Adding to the confusion is that proximate causation is a matter of court construction and judge-made law. In Florida, a defendant will be liable for all the “ natural and probable consequences” of his act if his action was a “substantial factor ” in creating the plaintiff’s harm and if that harm was foreseeable.

The legal concept (i.e., proximate causation) mandates that the defendant’s actions be the natural consequence of his actions/omissions, “ unbroken ” by any intervening cause, without which the plaintiff would not have been harmed.

While the case law sets out guiding principles of proximate cause, including “ foreseeability” and “unforeseeability ” tests, its application isn’t always consistent as the courts struggle to balance the “who-did-it” with the “who-should pay” concepts in any particular case.

Nevertheless, one aspect of proximate cause holds fast: that a defendant will escape liability if there is an intervening superseding cause of the plaintiff’s injuries.

Intervening Cause

Many accidents that lead to personal injury litigation —car accidents, commercial truck accidents, slips and falls, medical malpractice, products liability cases, etc. —involve negligent acts or omissions by more than one party or person. For example, commercial truck accidents can involve negligence on the part of a number of defendants. There could be negligence of the truck driver (e.g., speeding), as well as negligence on the part of the trucking company, maintenance company, or truck manufacturer.

Because a defendant cannot be held liable for a plaintiff’s injuries unless the plaintiff can prove causation, when more than one defendant is involved in causing the plaintiff’s harm or when more than one event caused the plaintiff’s harm, the legal concepts of intervening and superseding causes arise.

Intervening or superseding causes are defenses a defendant can raise to be relieved of liability (in whole or in part) for a plaintiff’s injuries.

An intervening cause is an event or occurrence that comes between the defendant’s actions and the plaintiff’s harm— thereby breaking the causal link between the defendant’s actions and the plaintiff’s injuries.

This does not mean, however, that just because more than one cause of the plaintiff’s harm exists or because two or more actions worked in concert to cause the plaintiff’s injuries, that the defendant will be relieved of liability. To be relieved of liability, the intervening cause must be independent of the defendant’s actions. Thus, if the damage to the plaintiff was reasonably foreseeable even though the intervening cause was not foreseeable, or if the intervening cause was a foreseeable result of the defendant’s negligence, the defendant will still be liable for the plaintiff’s injuries.

Superseding Cause

As noted above, multiple actions can combine together to cause a plaintiff’s harm. Whereas an intervening cause is something that occurs between the defendant’s actions and the plaintiff’s harm and does not always relieve a defendant of liability, a superseding cause is an act by a third person that does relieve the defendant of liability.

A superseding cause is one that breaks the chain of causation between the defendant’s original negligence and the plaintiff’s injuries.

It “supersedes” (i.e., replaces) the defendant’s negligence because the defendant’s negligence is no longer the direct cause of the plaintiff’s injuries.

To constitute a superseding cause , the second action must be one that is independent from the defendant’s negligence and not foreseeable. Nor can it simply be the product of a chain of events that the defendant “set in motion.”

Pleading and proving personal injury cases requires extensive legal knowledge and skill. Our personal injury lawyers have the skill and experience you need.

Skilled Personal Injury Attorneys in Florida.

John Fagan and his legal team are dedicated to helping those who have been injured due to the negligence of another or are disabled. Contact us here or call our firm at 777-JOHN. We serve clients throughout Florida. Our main office is in Orange Park, but we have consulting offices in Palatka, Middleburg, Keystone, Starke, Gainesville, and Ocala.