Palm Coast Injury Law Blog : Florida Personal Injury Lawyer & Attorney : Philip J. Chanfrau

If I were in a serious accident in Flagler county, which ER  would I go to for treatment?  Halifax Hospital without a doubt.  Residents in Orlando, Gainesville, and Jacksonville have access to state certified  Level One trauma centers.  As good as Halifax Hospital in Daytona is, it is classified as a Level II trauma center.  There are only 7 Level I trauma centers in Florida, and 2 of them are in Gainesville. There is no Level II trauma center in Flagler County.

There is a difference between care at a Level I and II.  In  Level I a General Surgeon is always present to help immediately  plus comprehensive long term care being available in the Level I  hospital.  Plus, if  you or a loved one is involved in a serious trauma, jeopardizing your spinal cord for example, the quicker care might mean the difference between being able to use your arms and legs again, or being a paraplegic or quadriplegic for the rest of your life. In terms of care, Level I trauma centers offer quicker and more comprehensive care because they have qualified expert staffing "On Call and immediately available at all times."  Level I Trauma centers must have burn units or transfer agreements with burn units set up.

The Trauma website says that Level II centers don't have the comprehensive ability for long term care and many of their patients end up being transferred. A recent study of Traumatic Spinal Cord Injuries (TSCI) concluded that :

"Trauma center care is associated with reduced paralysis after TSCI, possibly because of greater use of spinal surgery. National guidelines to triage all such patients to trauma centers are followed little more than half the time."

In Florida in 2002 more than 29,000 patients were treated at Florida trauma centers.

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 I met a new client last week who wondered how her bills would get paid and if she  would  have to pay one-third of her PIP benefits to me for attorneys for fees.  

I have some great news for you.  Florida law requires what is known as Personal Injury Protection (PIP).  It is a mandatory part of every auto policy.  As the insured you have the right to choose how to spend your PIP.  PIP can  be used to pay accident related injuries or your lost wages of up to  $10,000. It allows you to pick the doctor  of your choice.  It allows you to use the benefits for cleaning your house or yard work if your doctor says you cannot do those things.  If you have Medical Payments (MedPay) coverage on top of the PIP,  it will also pay another $5,000 towards medical bills.

 I told her I do not charge a fee on her PIP and Medpay  benefits.  Let me repeat:   I do not charge a  1/3rd cut of the $10,000 in PIP benefits or $5,000 in Medpay coverage.  I do not deduct anything at all from PIP coverage and Medpay coverage when I handle your file.  

Some clients do not have major medical and Medicaid pays their bills above the PIP.  Medicaid has a lien and is entitled to get its money back from any liability settlement.  It takes months to get Medicaid to tell me how much it is owed so I start early getting its information.

Some clients have major medical insurance on top of their PIP.  If medical bills are high enough to use up all of their PIP insurance then the major medical kicks in.  

After discussing this with her she was glad to know what would be paid by PIP and Medpay, and that I do not charge a 1/3rd fee for getting those benefits paid.   

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 A recent case in Central Florida involving Cell phone use tells us that the sequence of calls following an emergency like a car accident is very important.  It is human nature to want to report an accident to our loved ones to let them know you have been injured, and to get help.  But who you call first may create a very important clue about why the accident happened.  And the clue may be misleading.

In Hernandez v Felciano,  the plaintiff was rear ended, and called 911.  His detailed cell records were obtained and put into evidence at trial. ( A cell company can on request provide the details)  The records showed that about the time of the accident, he was on the cell with his family.  So the jury was faced with the chicken and egg problem:  which came first, the call to his family or the call to 911?  Based on this skimpy evidence, the jury concluded in Hernandez the plaintiff was at fault and caused himself to be rear ended.

The problem with cell phones is that they can do good: report an accident; or bad: cause an accident.

 My recommendations?

• Make sure the first call is to 911 to report the accident.  911 calls are recorded and can be obtained for later with a Public records request for use at trial if necessary.  
• However some agencies erase the calls after 30 days so don't dither or dally!  
• The time of the call on the 911 call can be compared to your cell phone bill and prove the first call was to report the accident, and then a call was made to your loved ones.
• Get a detailed copy of your cell phone bill and keep it for later.

A "Public records" request under the statute can be made for a copy of the call.  I believe a simple email request to the correct call center should be enough to get the relevant call, and it can be mailed to you in a MP3 format.  There may be a slight charge, so ask before your send your email.

You still have to know which Call center to send the request to, and that can be found by a simple Google search for "911 Call Centers."   The local one in Flagler County,  Florida where I practice has some good info on their website. The center's website says the caller's phone  location cannot be determined from a cell phone call, and you will need to verbally tell them your exact location so they can send help to you.  If the accident happens on the Interstate getting the exact address is a little more of a problem.  Many popular Cell phones now have GPS positioning information which most call centers can use to pinpoint a location. To track a person with a cell phone the cell user must have 

• the right kind of cell phone;
• be connected to the right network, and
• have the right service

I use an iphone and know I can set it up to allow its location to be found remotely.  It must be done beforehand it cannot be found with the GPS function.  

So, here is a lot of good info regarding cell phones and using them after an accident and I hope it helps save a life! Even if not lifesaving, it may help you avoid making a legal mistake by failing to call 911 first.  If you cannot call because you or your phone have been disabled or lost, may I recommend you ask a Good Samaritan/passerby to call 911 first?  And then call your loved ones for you?

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 Occasionally every plaintiff's trial lawyer will be offered  the opportunity to take a case which may look good but is really  a stinker.  The corollary is also true:  sometimes what appears to be a stinker can in reality be a good case which should be taken to court.  A recent rear end collision case which resulted in a death reminded me of this. 

The case is called Itiat v Foskey.   In that case a tow truck suddenly changed lanes on Interstate 10 in the driving rain and slowed down.  A following vehicle, operated by Mr. Itiat rear ended and crashed into the back of the tow truck and Mr. Itiat died.  Becuase it is presumed that the rear driver is at fault when he runs into the lead vehicle, many good lawyers would have turned this case down. In fact, the trial court granted the tow truck a summary judgment, which meant the Tow Truck driver was not at fault.  This holding was reversed on appeal. This means the jury gets to decide who was responsbile for the wreck, and it may decide the tow truck, or Mr. Itiat, or both were responsible.

There is a collection of cases  in Florida  where the presumption disappears because there is a plausible factual basis to explain why the Following driver was not at fault. In each of these cases there should be no directed verdict advising the Jury to hold the following driver to be negligent.

Here they are:

• an abrupt  and arbitrary stop by the lead car at a time and place where it could not be reasonably be anticipated.  This is the classic "GOTCHA RULE" which I previously wrote about in another Blog.
• an unexpected sudden lane change by a lead car, Itiat v Foskey, supra, and Allford v Cool Cargo
• a sudden mechanical failure, like a brake failure by the following car
• an illegal, and therefore unexpected stop, as on the Interstate outside municipal limits;
• a failure to remove or warn of a disabled  vehicle which has either broken down or run out of gas, in a location and at a time likely to cause a following driver to encounter it without adequate time to safely change lanes or stop.  I wrote about this type of rear ender here. 

The lesson here is that a careful investigation into the facts of a  rear end collision may reveal that the following driver was not totally, or maybe minimally at fault when he rear ends another car  in an accident.  An experienced trial attorney may be able to help.  Also, if  you have been sued for rear ending the lead vehicle, you may inadvertently waive your right to a counterclaim if it is not promptly filed.  

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The decision to let your child finally drive the family car is one requiring the ultimate exercise of good parental judgment. A parent must honestly weigh the maturity of their child, their need for independent transportation, the cost of insurance, a car, and the dangers and potential risks the child may face when you, the parent, are not there to provide continuous feedback and safe driving pointers.

Florida laws require a “responsible adult” to assume legal responsibility for the child’s negligent or willful misconduct while driving on a highway. This law is enforced when the under 18 child applies for a driver’s license by getting a “responsible adult” (usually a parent) to sign the application with them. F.S. 316.09 says that the child’s conduct is “imputed” to the responsible adult. In addition, the child’s driver’s license may be suspended if the under 18 child drops out of school. F.S. 322.091

Oprah’s website about the “No Phone Zone” is an excellent and fun place to help start a conversation with your child about the dangers of texting or talking on the cell phone while driving. I recommend you and your child together take a look at http://www.oprah.com/packages/no-phone-zone.html. It has some really fun quizzes to test your knowledge about texting or talking on a cell phone. It gives really good examples your child can identify with about the very real dangers of distracted driving.

It only takes a second or two to change a life forever. I took the quiz and only got 2 out of 5 questions right!

For a discussion explaining Texting and Negligence, look at my website at http://www.palmcoastinjurylaw.com/2010/02/articles/understanding-the-legal-proces/understanding-texting-and-negligence/

A parent who signs the Application with their child should obviously get insurance coverage for them. In my opinion it is better to add a child  on the family auto insurance policy rather than getting separate minimum coverage policy. Buying a car and titling it only in their name does not protect the parent from liability under FS 322.09.

In Florida a huge percent of drivers on our roads HAVE ABSOLUTELY NO INSURANCE. That means if an uninsured motorist runs a light and crashes into you or your child, no one will be able to pay the medical bills unless you have prudently bought a nice policy with “Uninsured or Underinsured” motorists coverage. Think of UM as standby insurance to protect the most important things in your life: Your family members. I can tell you from experience in handling cases for Flagler county clients, rarely do they get out of the Emergency room with less than $20,000 in hospital and doctors bills. The high cost of medical care is a reality. Thus, the need for as big a policy of Uninsured coverage as your budget will permit.

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As I wrote in an earlier blog, there are certain legal presumptions which arise when the rear car runs into a lead car.  But those "presumptions" sometimes evaporate into thin air if the rear driver has a good reason to explain the collision.  This blog explains how that disappearing presumption works.

In the case of Klipper v GEICO,  the evidence came out at  trial that  the rear driver had a good reason for rear ending the lead car: the lead car had become disabled on the interstate late at night, and the driver of the lead car had not 

• attempted to move it out of the way onto a nearby median even though there was time,
• turned on its flashers,
• raised the hood, or
• otherwise signalled oncoming traffic

So  what happened to the presumption of negligence?  The trial court should have said nothing about it and just let the jury decide who was at fault.  Instead, the judge instructed the jury that the rear driver had the burden to prove she was not negligent.  This was wrong, and resulted in a reversal.  Once evidence is produced which tends to show the real fact is not as presumed, the presumption dissipates.

Why:  Because once evidence was presented giving some good reasons why the jury could reasonably find the lead driver was also negligent, the presumption was "rebutted."  It vanished from the case and was no more than an inference which the court should not have commented on either way.  In fact, both drivers had something to point their fingers at.

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Rear end collisions have been around since cars were invented. (Funny, but I have never seen a pelican in formation fly into another one: Why not?)  I was asked recently by a client whether she had any legal rights when she rear ended the car in front of her. This raises the legal issue of what happens when a driver may only  be partly at fault (negligent). 

I learned  the lead car was going 50 mph in broad daylight, and accelerating on a three lane entrance ramp to the interstate, when it suddenly and abruptly stopped for no apparent reason.  There was no stop sign, traffic signal, road construction,  sinkhole, no other cars ahead of them merging into their lane, no road debris, no pedestrians or animals on the ramp, and the lead car  just suddenly stopped!!!  My client was not expecting that. She tried to stop but could not.  She crashed into the back of the lead car. 

• Florida has the "Gotcha" rule which applies to rear end collisions like this one.  The rule comes up rarely. It means that the rebuttable presumption of negligence which usually applies when the rear car hits a lead car, disappears when the lead driver makes a sudden, abrupt stop at a time and place where such a stop would be totally unexpected.  The presumption is said to have been "rebutted." (The law of "presumptions" is  discussed in this blog. )
• In such cases, the rear driver, acting as a reasonably prudent person driving a car or truck, has a good reason to not expect the lead car to make a sudden stop.  So, if the rear car driver gets sued, the jury can consider all of the circumstance, and conclude she was only partly at fault or maybe entirely at fault, but it is not a foregone conclusion that the rear driver was the only one at fault.  This makes insurance companies for the rear drivers happy.
• The lead driver is not entitled to a court ordered directed verdict, and the judge does not tell a  jury  they MUST find the rear driver to be negligent (at fault.)
• The rear driver, if the Jury so finds, may be entitled to recover her damages if the Jury believes she was hurt due to the negligence of the lead driver. IN most cases the lead driver will sue the rear end driver.  The rear end driver will report the case to their insurance company which will appoint a Defense attorney to handle the defense. However, the rear driver must file a mandatory counter-claim or it will be barred.  The insurance company defense attorney should advise the rear ending driver to consider whether to make such a claim so their rights to make a claim will not be waived.  Another attorney, who can handle the personal injury claim as a counter-plaintiff should be consulted by the rear end driver.
• Gotcha stops are rare.  They may be a result of road rage situations or other strange driving behavior.  It's almost like the lead driver invites the rear end crash. Sudden stops in "stop and go" traffic are not "Gotcha" stops because they are expected, since everyone else is doing it too.  Typically they come up when the lead car at a light starts up when the light turns green, then goes a few feet and stops suddenly even though there is no reason to.  This  often results in a chain of rear end collisions. 

One would think that the combination of a sudden stop, and the ensuing chain of rear end collisions would result in a finding that the first lead driver was presumed to be negligent , but the courts have  so far refused to hold that way.

Florida also has a "comparative" negligence law, which combined with the "Gotcha" rule allows a jury to apportion fault in all negligence cases, including rear end cases like this one.  Bottom line: just because she was the rear end driver and crashed into the lead driver, doesn't mean she is 100% at fault with no right of recovery for her own damages.  A jury could reasobably conclude the lead driver was also to some degree negligent for the sudden, unexpected abrupt stop at a time and place where no one would reasonably stop.

In my experience the rear driver always says the lead driver was making a "sudden" stop or a "sudden" left turn.  Why? Because the rear drivers  have been day dreaming, distracted, either on a cell-phone or worse, texting.  When they look back to the road they are always startled.  To them it is sudden,  Duh! If they were watching carefully they would have had time to react.

And what if the rear driver, was herself rear ended? In the leading case in Florida on rear end collsions and the "Gotcha Rule" the supreme court clearly recognized that motorists should be on the look out for accidents ahead.  Just because a driver ahead has negligently failed to stop and was in an accident, does not mean their following driver has a built in excuse because of their sudden stop.

  In other words, the negligent driver who is himself rear-ended may have a valid case when he gets rear ended. It almost sounds like he is getting rewarded for bad behavior.  But that is for the jury to decide.

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