Civil Law

Published on: March 5, 2024

When is Maternal Death or Miscarriage Medical Malpractice?

Fort Myers medical malpractice lawyer Pregnancy and childbirth can be a time of intense joy and anticipation for families. It can also be a time of great apprehension given the risks. Just because something goes wrong in pregnancy or childbirth doesn’t automatically mean there’s a basis for a Florida medical malpractice lawsuit. However, there are absolutely instances when maternal death and sometimes miscarriage could be grounds for a claim.

It is critical to work with a Southwest Florida medical malpractice attorney who understands the complexity of these claims and has the skills, resources and commitment to seek accountability from negligent medical providers when warranted.

An estimated 1 in 4 pregnancies end in miscarriage, according to the American College of Obstetrics and Gynecologists. Most of these occur in the first trimester, and there is often no obvious cause.

Questions of legal accountability can be complicated, but might be raised when there is evidence of a medical provider’s clear error, misstep, or missed diagnosis that caused or significantly contributed to the loss. Possible examples might include:

A hospital-acquired infection.
Failure to provide prompt and proper treatment in the event of a medical emergency.
Missed diagnosis of a serious condition, such as preeclampsia, can lead to miscarriage and/or maternal death.

However, under current Florida law, civil liability for negligence leading solely to the death of a fetus (as opposed to the mother) would not be considered “wrongful death.”

Florida Courts on Civil Liability for Death of a Fetus

Published on: November 11, 2022

What it Takes to Prevail in a Florida Bad Faith Property Insurance Claim

by Leland Garvin

Fort Myers bad faith insurance lawyer If you are a resident or property owner in Southwest Florida (particularly in Lee County, Collier County, and Charlotte County), odds are fair that you’re dealing with some type of insurance claim due to destruction caused by Hurricane Ian. Although insurance companies can be frustrating to work with even under “normal” circumstances, keeping up with your claim can become 10 times more stressful in the wake of a natural disaster. One thing to bear in mind is that if the insurers do not respond to your claim in good faith, it may be possible to hold them accountable with a Florida bad-faith insurance claim.

As our longtime Fort Myers-based property damage attorneys can explain, Florida bad faith insurance laws were enacted to protect consumers from insurer practices that are unfair or fraudulent. Lawmakers understand the substantial power imbalance between consumers and insurers, as well as the outsized impact on “the little guy” when insurance companies don’t act in good faith. Such claims are separate from the underlying damage claim and are specifically for accountability when an insurance company acts with the intent to deceive, mislead, or fail to fulfill a contractual obligation.

That said, simply having a claim denied is not, in and of itself, bad faith insurance. Fort Myers bad faith insurance claims can be complex and require a great deal of evidence. If you’re struggling to get your insurer to accept accountability and pay a claim they should, it’s time to involve a property damage lawyer. We will work tirelessly on your behalf to convince the insurers to pay their fair share. And if they act in bad faith, we’ll be there to help you gather the necessary evidence to prove it in court.

Some points of contention that we’re already seeing bubble up in pending Florida property insurance and business interruption claims:

Was the damage from wind or flooding?

There has been some early industry speculation that much of the property damage reported in Lee, Charlotte, and Collier Counties won’t be covered by property insurance policies, thanks to the flood exclusion in a lot of these policies. Many Homeowners Insurance policies cover wind damage (specifically windstorm coverage), but flood insurance is typically sold separately and is most often run by FEMA and the National Flood Insurance Program, although there are some insurers who write private flood coverage.

However, as our Fort Myers property damage lawyers can explain, the presumption of flooding as the cause of extensive damage is not an early stage assumption to which insurers should leap. Of course, it’s in the insurance company’s best interest to categorize it this way because then they’re more likely to be able to cite exclusions that they don’t have to pay. But the same thing happened in other named storms (thinking primarily of Hurricane Michael and Hurricane Ivan). Ultimately in those cases, it was determined the damage was actually partially – or sometimes fully – the result of wind-related damage. Continue reading

Published on: October 25, 2022

Filing a Florida Business Interruption Insurance Claim After Hurricane Ian

by Leland Garvin

Florida business interruption insurance Hurricane Ian The number of Florida insurance claims filed after Hurricane Ian is steadily rising, with the Florida Office of Insurance Regulation estimating there have so far been nearly 450,000 claims, more than 12,300 of those being commercial property claims. Those figures are likely to climb. Insured losses for wind damage are estimated to be somewhere between $23 billion and $35 billion, while flood losses covered by private insurers and the National Flood Insurance Program are going to be anywhere from $8 billion to $18 billion. (The actual amount of damage is much higher; these are only the estimated losses covered by insurance.)

For Southwest Florida business owners forced to halt operations – temporarily or indefinitely – it’s a smart idea to consult with a Fort Myers business interruption insurance claim lawyer.

Small businesses are the heartbeat of Florida’s Gulf Coast, especially in the restaurant and hospitality industry. Business interruption insurance covers losses sustained when you’re forced to shut down your business for a covered reason. It isn’t required in Florida, but it is highly recommended for South Florida companies – for situations just like this.

Hurricanes are notorious for closing down South Florida businesses for various stretches. Business interruption insurance won’t cover the property damage losses (which are hopefully covered in your commercial insurance policy). What it can do is cover things like:

Lost income and profits.
Fixed expenses, like utilities and payroll.
Ongoing tax burdens.
Reasonable expenses incurred while business is temporarily operating elsewhere.
Lost rental income.
Relocation expenses.
Small business loan payments.

Typically, business interruption policies only apply in situations where there is physical damage to the business property or some other property that precludes employees and customers from entering. An example of the latter situation would be the destruction of the Sanibel Causeway, the only roadway on/off the island making entry only accessible by boat or aircraft. Continue reading

Published on: October 19, 2022

How Do I Negotiate With an Insurer After Fort Myers Property Damage?

by Leland Garvin

Fort Myers property damage attorney Many in our Southwest Florida community who sustained Fort Myers property damage during Hurricane Ian are wondering where to even begin when it comes to filing insurance claims. Roofs were blown off. Lanais are no more. Vehicles were flooded. Homes were flooded if not entirely swept away.

Industry analysts are estimating this may have been the costliest storm in Florida’s history – which is saying something. Early insurance industry estimates of the damage are falling roughly around $53 billion. Some are already saying the final number could be higher.

As Fort Myers civil trial attorneys offering help with Florida business interruption insurance claims and bad faith insurance actions, we can offer some insight on how to get the process started. Good property damage attorneys can help you fight back when insurance companies pinch pennies, lowball your legitimate claims, and try to deny you the relief you’re owed according to the terms of your policy.

Property damage insurance companies in Florida are notorious for downplaying the extent of the damage, looking for any possible loophole to deny coverage. As you go through the process of negotiating for coverage, it’s important to understand how the process works – and when you may want to seek intervention with a South Florida property damage lawyer.

The Process for Fort Myers Property Damage Insurance Claims

As you wade into negotiating a Fort Myers property damage insurance claim, it’s important to understand how the claims process works.

In many cases the following process takes place: Continue reading

Published on: June 8, 2022

Can I Sue for a Florida Construction Accident Injury?

by Leland Garvin

South Florida construction accident lawyer As far as workplaces go, construction sites are among the most precarious. The U.S. Bureau of Labor Statistics reports that of the more than 300 workers who died on-the-job in Florida in a single recent year, the private construction industry had the highest number, accounting for 91 percent of those. The risk of a Florida construction accident is heightened when work is done at significant heights, next to a busy roadway, down in trenches, and with toxic materials, hazardous chemicals, and live electricity. The number of workers who survive – albeit with serious injuries – is even higher.

Among recent incidents of construction accident injury in Florida:

A 35-year-old construction worker was killed in Orange County when he was struck by a moving vehicle in a roadway construction zone.
A 27-year-old construction worker was killed in Lake County when the walls of a freshly-dug trench for a road-widening project collapsed in on him. It reportedly took crews 10 hours to recover his body.
A 43-year-old construction worker was killed in Miami-Dade County when heavy equipment fell on top of him. His widow gave birth to their second child just one week later.

As our Fort Myers construction injury lawyers can explain, it is possible for workers injured in Florida construction accidents to sue. However, most cases are typically third-party liability lawsuits as opposed to direct lawsuits against an employer. That’s because Florida workers’ compensation laws – F.S. 440.11, in particular – holds that no-fault workers’ compensation coverage is the exclusive remedy for injury claims an employee may have against an employer. There are, however, some exceptions and (more commonly) situations where third parties are liable.

Legal Options After Florida Construction Accident Injury

Published on: September 27, 2021

Florida Premises Liability Case: Treat Shop Should Anticipate Tripping Hazard

by Leland Garvin

Florida premises liability lawyer In any Florida premises liability case, the question of whether the defendant is responsible for the harm someone else suffered on their property often depends heavily on the unique circumstances of the case. Sometimes, that circumstance is a giant ice cream cone.

See: Greene v. Twistee Treat USA et al., recently before Florida’s Second District Court of Appeal.

Normally, people have an obligation to watch out for potential hazards when they’re on someone else’s property. They have a duty to avoid any open and obvious dangers. But that does not excuse property owners (businesses in particular) from their duty to anticipate potential dangers – even if they are open and obvious – and to warn guests of them. This is especially true if the property owner could have anticipated that the patron would be distracted or that it would have been so long since the last time they saw the hazard that they could have easily forgotten it.

In the case of the Twistee Treat tripping hazard, the 2nd DCA ruled that the “novel architecture” of the ice cream shop itself could be distracting enough that patrons might be forgiven not noticing/avoiding some hazards as they approach. Continue reading

Published on: June 30, 2021

Does Florida Have a “Wet Floor Sign Law”?

by Leland Garvin

Fort Myers wet floor sign Wet walking surfaces are a top cause of slip-and-fall injuries in Florida. But are businesses required to post a “wet floor” sign to warn you?

A wet floor sign may indeed play a big role in the strength of your case, but the simple answer to the question about whether Florida has a “wet floor sign law” is no.

As a Fort Myers slip-and-fall injury attorney, I have successfully handled many of these premises liability claims. It is important to understand that these cases are often more complicated than they may initially appear. The outcome will depend heavily on the factual circumstances. The presence (or lack thereof) of a wet floor sign is just one of those. Continue reading

Published on: April 30, 2021

Florida Slip-and-Fall On-the-Job: Beyond Workers’ Compensation

by Leland Garvin

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Whether you are a construction worker, nurse, or teacher, if you are injured on-the-job in a Florida slip-and-fall, workers’ compensation may be your sole source of financial recovery. Workers’ compensation is considered the exclusive remedy for most work-related injuries in Florida, meaning it is the only recourse one has against an employer. Workers do not need to prove negligence so long as they were hurt in the course and scope of employment, and in turn the employer covers the cost of treatment and a portion of lost wages during recovery.

However, workers’ compensation tends to fall short of the damages (pain and suffering, loss of life enjoyment, etc.) one could recover in a personal injury lawsuit. Because the exclusive remedy provision of Florida workers’ compensation law makes it almost impossible to win a personal injury case against one’s own employer, our South Florida slip-and-fall injury lawyers would primarily be concerned with the potential liability of a third-party property owner/controller or other liable parties. This would be someone other than your direct employer. (Note: Independent contractors are often not considered “employees” for workers’ compensation purposes and thus may be allowed to pursue injury claims against the company for whom they were working.)

Slip-and-fall cases are a type of premises liability. Premises liability is a legal concept referring to an injury caused by an unsafe or defective condition on someone else’s property. To win, a plaintiff must prove negligence (failure to exercise reasonable care) in owning/maintaining the property. The mere fact of a dangerous condition or occurrence of injury does not automatically mean the property owner was negligent. In most cases, you must prove the property owner knew or reasonably should have known the site was unsafe and failed to take proper steps to address the danger. (The exact proof burden for slip-and-fall injury claims is spelled out in F.S. 768.0755.)

It is important that if you are seriously injured at work and believe a third-party was at least partially responsible that you speak with an experienced injury lawyer about your legal options. You may have grounds to pursue additional damages beyond workers’ compensation.

Published on: July 22, 2020

Slip-and-Fall Injury Verdict Upheld After Court Finds Store Had Sufficient Notice of Hazard

by Leland Garvin

Naples slip-and-fall injury To prevail in a Florida slip-and-fall injury lawsuit, plaintiffs need to prove the business establishment had either actual or constructive notice of the hazardous condition, as outlined in F.S. 768.0755. Similar rules exist in other states, such as Wisconsin, where the state supreme court recently held there was sufficient evidence of constructive knowledge of a dangerous condition – even if the plaintiff could not prove exactly how long the slippery substance had been there.

Before detailing what happened in this case, our South Florida slip-and-fall injury lawyers think it is important to explain the difference between actual and constructive knowledge in a premises liability case.

The actual notice requires evidence that a business was actually aware of a particular danger in that specific place and time. Constructive notice, meanwhile, requires presenting circumstantial evidence that shows:

Published on: June 5, 2020

Proving Constructive Knowledge in a Florida Slip-and-Fall Lawsuit

by Leland Garvin

Florida slip-and-fall lawsuit Guests who are injured on someone else’s property may have the option of filing a claim to be compensated for injuries by the property owner. These are a type of premises liability claims, and one example is if a patron at a grocery store is injured in a slip-and-fall accident on a “transitory foreign substance”. To prevail in a Florida slip-and-fall lawsuit, F.S. 768.0755 requires the plaintiff’s needs to show the defendant property owner/manager had either actual or constructive knowledge of the slipping hazard. A “transitory foreign substance” was defined by the Supreme Court of Florida as “any liquid or solid substance, item or object located where it does not belong.” Owens v. Publix Supermarkets, Inc., 802 So.2d 315, 317 (Fla. 2001)

Actual knowledge means the property owner was fully aware of that particular danger at that specific place and time. Proving this can be tough. Constructive knowledge is how most of these cases are established.

Constructive knowledge can be established by laying out circumstantial evidence that shows:

The hazardous condition existed on site for so long that the business establishment should have known of it were they exercising ordinary care;
The dangerous condition occurred with such regularity that it was foreseeable.

This element is critical. Recently, Florida’s Fourth District Court of Appeal upheld the dismissal of a Florida slip-and-fall lawsuit of Oliver v. Winn-Dixie Stores, Inc. on the basis that the plaintiff had failed to establish defendant’s constructive knowledge of a slip hazard. Continue reading