Personal Injury

Published on: May 11, 2023

How a Florida Hospital Lien May Impact Your Fort Myers Personal Injury Lawsuit

Medical bills are one of the central claims filed in virtually any Fort Myers personal injury lawsuit. But if you don’t have health insurance (or enough health insurance) while your personal injury claim is pending, you could well find yourself with something called a hospital lien.

As our Southwest Florida personal injury lawyers can explain, a hospital lien – sometimes called a medical lien – is basically when a healthcare provider is granted payment rights for services rendered to a patient with a pending personal injury case. This seems fair enough: You get treatment at the hospital after a car accident, file a personal injury lawsuit against the at-fault driver, and providers are ultimately paid from the amount collected in that case. (You likely even signed discharge paperwork granting them permission to send in a claim against any court-awarded costs to pay medical debts related to your treatment.)

Where it can get a bit dicey is in determinations about how much is “reasonable.” Healthcare providers may have one idea about what’s “reasonable,” and the auto insurer(s) involved may have quite another. It’s a major issue because, in the Sunshine State, hospital liens are often given priority over any and all other recoverable damages – including lost wages, pain, and suffering, etc. That means they may argue that they are first in line when it comes to getting paid.

Who can you trust to advocate for you during these negotiations? Your Fort Myers personal injury lawyer’s at Garvin Injury Law. Not only do we understand what is considered reasonable for services rendered, we know what insurers are likely to agree on and whether the injured party may face challenges in actually collecting that sum. We’re also skilled in negotiating with hospitals and other healthcare providers on this front.

Also worth noting: Florida does it a bit differently than other states. While most other places have a single hospital lien statute, Florida allows each county to enact its own hospital lien statutes. (The state used to have a single health care lien law, but it was deemed unconstitutional in the 2012 Florida Supreme Court ruling in Shands Teaching Hosp. & Clinics, Inc. v. Mercury Ins. Co. of Fla.) What this ultimately means is there can be a big difference between when you might expect in Monroe County or Collier County versus what you might expect in Lee County or Sarasota County. Some counties don’t allow medical liens at all, while some do require they be filed in short order. Continue reading

Published on: April 28, 2023

Experienced Naples Car Accident Lawyer Can Help Properly Address Preexisting Conditions in Crash Cases

by Leland Garvin

Yes, a past injury or illness can absolutely impact a Florida personal injury claim. As our Naples car accident lawyer can explain, a preexisting condition complicates the claims process because the burden is on the plaintiff to prove the injury at issue was either caused or aggravated by the negligent act.

For instance, if you’ve been seeing a chiropractor for years for back pain – and then are in a crash that you claim resulted in back injuries – it’s up to you to prove that your injuries are new or that old injury were exacerbated by the crash.

To do all this effectively requires that you’re upfront with your Naples car accident lawyer about your pre-existing conditions. It is also important that you are upfront with your medical providers about your old injuries and are able to distinguish and describe the new injuries or at a minimum explain that they have been made worse. Your attorney is then responsible to be sure the aggravation of a pre-existing condition is properly pleaded and supported in the special damages portion of the lawsuit. Special damages for the aggravation of a preexisting condition must be expressly stated in the claim and supported by the evidence. It’s not assumed.

We saw this play out in the recent case of State Farm v. Davis, decided by a panel of judges for Florida’s 5th District Court of Appeal. In this case, insurance company State Farm appealed a $500,000 verdict, which included compensation for future medical expenses and future non-economic damages, including for aggravation of a preexisting condition.

The case stemmed from a 2016 Florida car accident between the plaintiff and another driver, an uninsured/underinsured motorist accused of negligence. As such, the plaintiff filed a claim for damages with her own UM/UIM car insurance company. The insurer conceded the other driver was at-fault, but contested the causation, nature, extent, and consequences of her injuries. Basically, the insurance company didn’t believe her injuries (or not all of them) resulted from the crash or as serious as she claimed. During the discovery process, it was revealed plaintiff had been receiving chiropractic care for pain and limited movement in her neck and lower back for 14 years prior to the crash. In the previous 6 years before the car accident, the plaintiff had seen a physician nearly 50 times for neck and lower back pain – one of those just three days before the crash. The doctor who treated her would later testify that the injuries he’d been treating her for weren’t the same as the injuries she’d suffered in the crash. An orthopedic surgeon she began seeing after the crash testified that two herniated discs and joint/neck pain were a result of the crash – for which she’d need future surgeries. However, no medical testimony or other evidence was presented by the plaintiff to indicate that the car accident resulted in an aggravation of her preexisting injuries or conditions.

A Naples car accident lawyer can explain that people injured in crashes might or might not have preexisting conditions, and those might or might not be aggravated in the crash. But even if the same general part of the body that has a preexisting condition is injured in the crash, and even though this might naturally and proximately result in aggravation, it is not necessarily the case. This must be specifically alleged, pleaded, and supported. Continue reading

Published on: April 14, 2023

Florida Injury Lawsuits: Tougher to File, Win & Payout with Passing of the New Insurance Bill

by Leland Garvin

Once again, tort reform has made it tougher for victims of Florida car accidents to sue and collect fair damages for their losses. In order to get this passed the legislature has inaccurately pointed the finger at the allegation of frivolous Florida injury lawsuits and sky-high compensation payouts as the cause of high customer insurance premiums.

Reality check: Insurers are doing just fine. They even contributed $7 plus million to Florida politicians last year. Furthermore, the amount of insurance premiums paid by customers has little to do with accident claim payouts. It has a lot more to do with insurer profit margins.

Time and again, we’ve seen legislation enacted that makes it harder to sue and collect fair compensation against negligent motorists, businesses, and doctors – but fails to lower insurance premiums. Take for instance the Florida law passed in 2003 to limit medical malpractice pain-and-suffering damage payouts. At the time, state lawmakers insisted there was a “crisis” facing medical malpractice insurers that forced the industry to charge doctors super high premiums, to the point doctors had no choice but to relocate their practices out-of-state. This was all justified by basically arguing that greedy patients and plaintiff lawyers were exploiting medical malpractice insurance for big bucks. In a 2014 overturning of those damage caps, the Florida Supreme Court blasted lawmakers for their initial reasons for passing the law – while also noting it never made a dent in doctors’ insurance bills. In Estate of McCall v. U.S., the Court called the lawmakers’ justifications “arbitrary” and “irrational,” and an “offense to the fundamental notion of equal justice under the law.” In that 5-2 opinion, the court noted the effect of saving a modest amount for many meant imposing devastating costs on the few – namely those catastrophically injured. “If there ever was an alleged medical malpractice crisis” in the first place, the Court remarked skeptically in its reversal, there wasn’t one anymore.

But state lawmakers haven’t stopped trying to use this as a justification for ongoing efforts to make life easier for insurers. In the years since, they’ve continued pressing measures reducing both liability and damage awards for dangerous property conditions, car accidents, and work injuries. They’ve also targeted payouts from life and health insurance.

Now, proponents of this new law have promised that it will help eliminate the so-called “tort tax” imposed on citizens – something that doesn’t actually exist.

As you can imagine, our Fort Myers personal injury lawyers are among the many trial lawyers who strongly opposed this legislation. We believe that these new laws will disenfranchise people who have suffered serious injuries because of someone else’s wrongdoing. It’s not just lawyers, though. Other vocal opponents include doctors, bicyclists, and previous car accident victims – many of whom showed up in significant numbers at state committee hearings on the issue.

What Exactly Will this the Law Do?

The legislation – House Bill 837 and Senate Bill 236 – has made it more difficult to file, win, and fairly collect on well-founded Florida injury lawsuits. These bills were fast-tracked by lawmakers and quickly signed into law by Governor Desantis.
Continue reading

Published on: February 6, 2023

Beyond Workers’ Comp: Legal Liability for Florida Construction Accident Injuries, Deaths

by Leland Garvin

Construction is an industry vital to the growth of our communities. Still, there’s no question it’s also a dangerous profession. The U.S. Bureau of Labor Statistics reports that Florida construction accident injuries have accounted for nearly one-third of workplace fatalities in the state in recent years. Transportation incidents and falls, slips, and trips are the two most frequent causes of construction worker injuries. Harmful exposure to substances and violence was also problematic on job sites.

But even as job sites on the whole have gotten safer in recent decades, we may yet see an uptick in Florida construction accident injuries and deaths over the next several years. That’s because the industry is booming, deadlines are tight, and the pressure to complete jobs quickly and with as little overhead costs as possible can lead to safety hazards. Florida is a national leader when it comes to construction spending, with the Sunshine State pulling $37 million worth of building permits just in 2020 alone. The U.S. Census Bureau’s Building Permits Survey reports the Southwest region of the state is the busiest for construction firms.

So who is legally responsible when a Florida construction accident results in serious injuries or even deaths of workers? There’s a good chance there’s more than one possible defendant.

Workers’ Compensation Benefits for Florida Construction Accident Injuries & Deaths

As our Fort Myers injury lawyers can explain, the first step is usually workers’ compensation. This provides no-fault coverage for on-the-job injuries and illnesses, typically paid bi-weekly at 66 and 2/3 percent of one’s average weekly wage. Most employers in Florida are required to carry workers’ compensation coverage. It’s considered the exclusive legal remedy one has against an employer in the event of a work injury. If the employer doesn’t carry workers’ compensation as required, they can be sued in court – where payouts can be a lot higher than insurance premiums.

In the event of a death, F.S. 440.16 stipulates that survivor benefits through workers’ compensation include up to $150,000, which includes:

Up to $7,500 in funeral expenses.
66.67 percent of the decedent’s average wage to dependents. If there is a surviving spouse with no children, they’ll receive 50 percent of the average weekly wage, to cease upon death. If the spouse remarries, they’ll get a lump sum payment for 26 weeks of 50 percent average pay compensation. For surviving spouses with children, the spouse still receives 50 percent, with an additional 16.67 percent on account of the children. If there is no spouse, each surviving child may receive 33 1/3 percent. Parents of a decedent may receive 25 percent – assuming there is no surviving spouse or children. Next in line are siblings and/or grandchildren, who may receive 15 percent each – again assuming there is no surviving spouse or kids.

But while these benefits are the sole remedy against an employer, third-parties can still be held liable for workplace accidents resulting in injury or death. This is often a relief to families, as $150,000 only goes so far. Plus, workers’ compensation doesn’t allow for the collection of damages for things like physical pain and suffering, mental anguish, emotional distress, or loss of consortium – all of which can be recovered in a tort lawsuit against a third party.

When Property Owners Can Be Liable for Construction Injuries

A significant percentage of construction workers are employed by independent contractors, hired by property owners and/or developers to complete certain tasks on a construction site.

As noted in the recent case of Florida appellate case of Martex Corporation, et al v. Artiles et al, long-standing case law on Florida construction accident injuries holds that property owners who employ independent contractors to perform work on the property won’t be liable for injuries sustained by the independent contractors’ employee during the performance of that work. However, there are two major exceptions: Continue reading

Published on: November 23, 2022

Florida Roadway Hazards After a Major Hurricane

by Leland Garvin

Florida roadway hazards after hurricane Southwest Florida is still reeling from the unprecedented devastation of Hurricane Ian, a huge storm with near-Category 5 winds and storm surges that reached 12-18 feet in some areas of Lee County.

At Garvin Injury Law, we are lifelong Floridians and while we have lived through many previous storms this one was particularly tough. Along with the rest of the community, our hearts are broken at the loss of life and the sheer scope of damage and displacement. As we all grieve what’s been lost, begin to clear the rubble, and prepare for our next steps, we want to make sure folks are aware that there are still a number of ongoing roadway hazards after a hurricane. Motorists, pedestrians, bicyclists, truck drivers – all of us need to be using extra caution as we navigate our battered neighborhoods.

We all know it’s not wise to be driving during a big storm if it’s avoidable. But in the wake of a major hurricane, there are many Florida roadway hazards that persist in the days, weeks, and even months following. There’s flooding, of course, though that has thankfully receded for the most part. But it’s given way to new dangers. We’re now seeing the traffic in coastal cities like Fort Myers, Naples, and Cape Coral becoming badly gridlocked. There are also issues with non-functioning traffic signals, damaged/washed out roadways, roadway debris, more pedestrians/bicyclists than usual, and people attempting to drive vehicles that have been damaged by flood waters.

Here, we’ll outline some of the top road concerns – and how to stay safe on our streets as we work toward recovery and rebuilding. Continue reading

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: September 21, 2022

Fort Myers Injury Lawyer Tips for Talking to Insurance Adjusters

by Leland Garvin

Despite warm-and-fuzzy slogans such as “like a good neighbor” and “you’re in good hands,” insurance companies are not, in fact, looking out for your best interests. In fact, adjusters actively pursue every opportunity to minimize or deny claim payouts at every turn possible; most often they are looking out for their shareholders or the interests of the corporation. As Fort Myers injury lawyers, we’ve become closely familiar with all the ways in which insurance adjusters lull claimants into a false sense of security as they seek out the slightest inconsistency that may allow them to cite a coverage exemption or a reduction in payout.

On the other hand, Insurance companies do have a legal responsibility to act in good faith, per F.S. 624.155. Examples of bad faith insurance would be things like unnecessary delays on claims, misrepresentations of coverage, ambiguous policy exclusions, denying valid claims without just cause, or extremely lowballing payouts.

But even when insurers don’t cross the threshold of bad faith, they can still undermine your claim in a number of ways.

Published on: September 14, 2022

Fort Myers Golf Cart Injury Lawyer Talks Liability in Florida Cases

by Leland Garvin

Golf carts were designed with the goal of making it easier for golfers to efficiently traverse the long stretches on the green. But here in South Florida, they’ve become fairly ubiquitous in residential neighborhoods, with operators ranging from spritely senior citizens to carefree kids as young as 8 or 9. It’s also not uncommon to spot them in mobile home communities, airports, sporting events, or at amusement parks. As a Fort Myers golf cart injury lawyer can explain, the presence of golf carts on Florida roadways has led to an increase of dangerous collisions with cars and pedestrians, as well as tipping and rollovers.

The National Electronic Injury Surveillance System database reports that between 2010 and 2019, there were more than 63,000 reported golf cart injuries in the U.S. The annual figure has risen steady during that time, from about 5,500 in 2010 to more than 6,500 in 2019. Kids under 12 suffered the highest percentage of injuries, with most of those occurring on school campuses or at sporting events. More than 40 percent of reported injuries involved head and neck injuries.

Florida Golf Cart Rules

State law on golf cart operation is spelled out in F.S. 316.212, and stipulates that golf carts can be operated on certain public county roads, municipal streets, and state highways – but only after consideration by local government leaders about whether golf carts can safely travel and cross those thoroughfares. There should also be signs present.

Under current law, operators don’t need a driver’s license (though they should be at least 14). Nor do golf carts need to be licensed or insured like a car. But if a golf cart is allowed to be driven on the road, the operator must obey all traffic laws – including prohibitions on things like careless driving, failure to yield, running a stop sign, improper turning, and driving under the influence. Such actions could be used as evidence of negligence against the operator if his or her actions cause injury to another.

In Southwest Florida, local county and city governments have a patchwork of rules for when and where golf carts can be operated. For example, Lee County ordinance as of 2009 allows golf carts to be operated from sunset to sunset on county roads on Captiva Island. If the cart is equipped with headlights, brake lights, turn signals, and windshields, it may be operated at night. Operators under 17 with a driver’s license can operate golf carts on those roads from 11 p.m. to 6 a.m., but only if they’re accompanied by an over-21 licensed driver; exceptions are made if the youth is going to or from work.

Meanwhile in Cape Coral, golf carts used to be allowed on certain city roads, but city council reversed course last year and banned golf carts on all city streets.

Recently, council members for the City of Fort Myers have been mulling the possibility of allowing golf carts on certain roads. Proponents argue the carts are easy to drive, energy efficient, and convenient. Those opposed to the measure cite the potential dangers. Discussion on the proposal has been tabled for the time being, but if ultimately approved, the ordinance would allow golf carts to be operated on roads with speeds of 35 miles-per-hour or less. Operators would need a valid driver’s license, and all carts would be outfitted with the proper safety lights. Residents and the City of Fort Myers has continued to debate whether or not this is a good idea on the bike paths in and around McGregor Boulevard.

Published on: August 3, 2022

What You Need to Know About Suing after a Florida Airbnb Injury

by Leland Garvin

South Florida Airbnb injury lawyer Airbnb is a household name – a wildly popular online platform for parties arranging vacation stays or experiences. According to insurance comparison site The Zebra, Airbnb has nearly 6 million active listings worldwide, operating in at least 100,000 cities with over 1 billion guests staying at these properties. But what happens if you suffer a Florida Airbnb injury? As our Naples personal injury lawyers can explain, there are some unique aspects of these cases, so it’s important to discuss your rights with a civil trial lawyer who practices in the region where the accident or injury occurred. If you’re hurt in a Florida Airbnb injury, you should be consulting with a Florida injury lawyer.

Recently, a Florida man filed a federal lawsuit in the U.S. District for the Northern District of Georgia against the California-based Airbnb and a pair of its hosts after the man was injured while riding a tree swing on the property. According to Law.com, the man’s premises liability lawsuit alleges the property owners bear responsibility for the property’s maintenance – and that includes the tire swing on site. The property owners installed the tire swing and maintained it, and it was advertised on Airbnb as an amenity that business invitees were enticed to use. Yet, that swing was in “unreasonably dangerous condition,” according to the plaintiff. According to the complaint, the tree limb to which the swing was attached was rotten, fragile, and otherwise incapable of supporting the weight of an adult person. Plaintiff, unaware of this, was using the swing when the branch from which it hung broke, causing him to fall “violently” to the ground, suffering injury to his leg, knee and back. He’s seeking more than $100,000 in compensation for his injuries.

There have been many other reported incidents of Airbnb injuries in recent years. Among these:

A 35-year-old Canadian woman died of carbon monoxide poisoning at a Taiwanese Airbnb. The company offered her family $2 million to settle (denying liability by calling it a “humanitarian gesture”), but her family opted to continue with their wrongful death lawsuit.
A 37-year-old California man suffered a spinal injury after falling into a pool at an Airbnb home in Cancun.
Two teens were killed and several injured at a party thrown at an Airbnb-rented property in Pennsylvania. The incident prompted Airbnb to make permanent its ban on parties at Airbnb rentals (initially a public safety measure at the start of the pandemic).

As property owners making a profit off guest stays at their home, Airbnb hosts are going to be held to a higher legal standard than your typical homeowners. They’ll be viewed more in line with business owners. In Florida, business invitees to a property (those invited for the financial benefit of the property owner) are owed the highest duty of care. That means property owners must take care to regularly inspect the property and address any known or foreseeable safety issues. If such issues aren’t addressed right away, they have a duty to adequately warn guests of a potential hazard. Naples injury lawyer

When someone suffers a Florida Airbnb injury, they may be entitled to collect damages under Airbnb’s Host Protection Insurance. This plan automatically provides Airbnb hosts with $1 million in coverage in the event a guest is hurt while they’re staying at an Airbnb host’s site. Host liability covers hosts if they’re found legally responsible for bodily injury to guests or others. It generally doesn’t cover damages for things like: Continue reading

Published on: July 22, 2022

Navigating the Complexities of Florida Truck Accident Claims

by Leland Garvin

South Florida truck accident lawyer Large truck accidents, frequently resulting in substantial property damage, serious injuries, and fatalities, have a unique set of complicated insurance and liability issues. In fact, collecting financial damages following a Florida truck accident can be much more complicated than a basic car crash crash.

In a single recent year, the U.S. Department of Transportation reported more than 4,100 people died in large truck crashes nationally. Of those, nearly 70 percent were people in other vehicles. Another 15 percent were pedestrians, bicyclists, or motorcyclists. The number of people killed in large truck crashes rose more than 30 percent just from 2009 to 2019.

After a commercial truck accident, it’s imperative to work with an injury lawyer who has extensive experience handling these types of claims. The reality is that pursuing any claim for personal injuries can become complicated rather quickly, but crashes involving commercial vehicles are often even more complex. Continue reading