Florida Injury Lawyer Blog

As the weather warms up more and more people are taking their bicycles out of storage for the summer. As a bicycle accident lawyer in Miami, I recommend the following; before riding a bike that has been unused for more than a few months, have it thoroughly inspected, cleaned and maintained by a professional bicycle mechanic.

TUNE UP TIME

Improperly maintained bicycles or a bicycle with a defective component can cause a serious bike accident. Over the years we have represented a number of injured cyclists in claims against manufacturers, distributors and even the local bicycle shop.

This week, Cervelo, a Canadian frame maker and sponsor of the several top ranked professional cyclists, announced the recall of Aura Pro aero handlebars. The Aura pro is a custom bicycle handlebar that attaches to the 2013 Cervelo P-Series bicycle. It comes in black, gray or red with the brand name "Cervelo" imprinted on the frame. These bicycles are designed for maximum speed by experienced cyclists in time trials and triathlons.

According to the Government of Canada's Official Safety Recall Page, the bars were made in Hong Kong by 3T and distributed internationally through Cervelo's Toronto offices. To date, 623 bicycles have been recalled in the United States. If you own a Cervelo and are not sure if your bars have been recalled, I urge you to immediately stop riding your bicycle and contact 3T at 1-800-223-3207.

Since I am a Miami attorney who sues companies for products that hurt people, I am required to constantly research the CPSA's recall lawsuits. I found out about the Cervelo 3T recall on the United States Consumer Product Safety Commission website. But I was unable to find any reference to the recall on Cervelo's homepage. It is understandable that a company in the business of selling bicycles may not want to alert potential consumers to a potentially dangerous defect. I am disappointed in Cervelo as it should be compelled to put this kind of information prominently on its websites homepage to alert and protect consumers.

STRAP IT ON

Most people understand the importance of wearing a helmet when riding a bicycle. Studies show that bicycle helmets can reduce the risk of a head injury by as much as 85% during a fall or collision. Bicycle helmets are specifically designed to absorb the impact rather than your brain. The problem we frequently encounter is that people have sustained serious head injuries by wearing the wrong kind of helmet. Not all helmets are the same and each type of helmet is designed to protect heads from dangers that are particular to that sport. For instance, a skateboard helmet does not meet the same federal safety standards as a bicycle helmet.

We recommend that cyclist only use a helmet that meets the CPSC's helmet standards. Helmets that are marketed for mountain climbing, go karting, horseback riding, lacrosse and skiing do not have to meet the same standards as a CPSC approved bicycle helmet.

To protect your children from the substantial risks of injury and death present in a bicycle accident it is very important when selecting a helmet to not rely solely on a manufacturer's name especially when sold in a toy store. Rather, we recommend carefully inspecting the helmets inside lining and verify that it is in compliance with the CPSC and ASTM formerly known as the American Society for Testing Materials.

Helmet fit is as important as selecting the correct helmet. A helmet should be both comfortable and snug. Lose helmets can fall off during a crash or shift to the side actually causing more harm than protection. Consult with a professional at your local bike shop to ascertain if your helmet is properly fitted. For more information En Español.

Apparently Lance Armstrong just admitted to having used performance enhancing drugs during his Tour de France victories. I am disappointed; and candidly very sad. I have admired and followed Armstrong's career closely. My father and I were in Paris, and watched him cross the finish line for his 7th and final Tour victory. I reached out and touched his bike. Today, my 10-year old son Nory has a signed poster of Lance above his bed. It was given to us by my friend Chris Carmichael who was Armstrong's personal coach. Another poster of Armstrong hangs in my Coral Gables law office. It shows Armstrong climbing Mount Ventoux.

I am a fan, father and Miami bicycle accident lawyer. I am also a former cyclist who raced in the United States and Europe. Here is an old picture of me racing clean.

I have diffuiclty understanding Lance's sudden confession. After spending most of my life cross-examining defendant doctors, expert witnesses and corporate representatives I know that some lie more convincingly than I can tell the truth. I also understand how a doctor lies to save his medical license. I have seen hospital administrators, insurance adjusters and grocery store managers lie countless times to deprive justice to the injured.

I have also attended thousands of clients' depositions, who have against my advice, "misstated the truth." We spend a lot of money doing background investigations on potential client's before we agree to accept a case. We do this to prevent a legitimately injured client from ruining their own case by trying to hide a prior accident or injury.

In Florida, when a personal injury claimant testifies falsely under oath their entire claim can be case dismissed with prejudice as a sanction. It is not uncommon for a trial judge to order an untruthful plaintiff to pay the attorney's fees and costs to the opposing party.

There are criminal ramifications as well. Florida's Perjury Statute §837 defines a false statement as one that is made by someone who does not believe it to be true. Violating this statute would subject Lance to a third degree felony punishable by up to five years in prison and a $5,000 fine.

Why after all these years has Lance has decided to come clean? Purportedly he wants to continue to compete in triathlons and other events that have banned him. Can his competitive drive outweigh potential financial loss and criminal exposure? Civilly, I believe he is subject to multiple law suits for fraud, insurance fraud, breach of contract and slander.

I imagine, like many of Florida's uninsured medical doctors, Lance has a bullet proof asset protection plan that will shield him from creditors. Or perhaps he will seek bankruptcy protection? He also may have made so much money that he can work out a settlement and pay back plan. I recently blogged about this in the Huffington Post "Patients, Beware When Doctors Go Bare" explaining how doctors commonly use these techniques to avoid paying medical malpractice judgements in Florida.

I cannot imagine how much time and money has been spent chasing and investigating Lance over the last ten years. At each juncture, Lance would not only deny the accusation, but often sue the accuser or derail their own professional aspirations. Yet somehow, he has chosen this inexplicable moment in time to confess.

Can Lance still be a hero and a role model if by confessing he encourages others who have lied and cheated in sports and other aspects of their lives to do the same? Or is his legacy forever tarnished and branded as a fraud. Only time will tell. For now, his poster remains on Nory's wall.

The family of a cyclist killed while riding on Miami's dangerous Key Biscyane will finally get their chance at justice. Omar Otaola, a well known Miami cyclist, died tragically after being hit by a truck owned by Cusano's Italian Bakery. He left behind a wife and two minor children.

His family collected a $1,000,000 insurance policy from Allstate for Cusano's single limit coverage without having to sign a release. The settlement was approved by the probate court and the money was disbursed. Apparently, Cusano's did not demand a release nor did it participate in the probate proceedings.

The family then sued Cusano's for wrongful death, seeking an additional million from their excess insurance policy provided by AIG. Miami-Dade Circuit Court Judge Marc Schumacher dismissed the family's Miami accidental death case and ordered them to either sign a complete release in favor of the Bakery or return their million dollar settlement.

After nearly 7 years of litigation, the Appellate Court reversed Judge Schumacher. It found that by simply accepting Allstate's $1,000,000 policy, the family did not abandon its right to sue Cusano's. First, because Cusano's did not participate in the probate court proceedings and failed to demand a complete release. Instead, Cusano's waited over two years to demand a release. Second, Cusano's did not claim they had a "settlement" as an affirmative defense. Instead, it plead "accord and satisfaction," even though it had not made any payment toward the claim.

Allstate did the correct thing by tendering the limits to the family. I am one of the first to criticize an insurance company; but in this case Allstate should be congratulated for moving quickly to help a grieving family. Insurance companies must protect their insured's from an excess judgment - or risk being exposed for bad faith.

Florida's bad faith statute §624.155 and case law can make an insurance company responsible for paying beyond policy limits if they delay settling or add unneeded terms to a release. Florida's Insurance Code states that all insurance companies have to settle claims fairly and honestly. An insurance company is in "bad faith" when it is reasonably clear that they fail to resolve a claim that they should.

I fail to appreciate Cusano's motive in trying to undo Allstate's efforts. Cusano's benefits from Allstate's payment since any money the family receives at the trial would be offset by the million dollar settlement. In other words, Cusano's would only owe a verdict in excess of the million dollars. I question whether or not AIG's conduct toward both the Otaola family and Cusano's was in "good faith."

Jeffrey Lee Howard of Hollywood Florida was riding his bicycle at the intersection of Taft Street and North 66th when he was hit by a Volvo driven by Tony Shillingford. He was killed instantly.

Intersections are particularly dangerous and not just for bike riders. In fact, almost 40% of all traffic crash accidents in Florida happen at or near an intersection. There are various causes for intersection crashes, such as when one or more drivers are distracted, intoxicated, or simply ignore the traffic signals.

When we are hired to investigate a bicycle accident at a Florida intersection our lawyers focus on the intersection itself and not just the action of the drivers. We analyze the following:

• Time of day
• Lighting condition
• Atmospheric condition
• Roadway surface condition
• Roadway alignment
• Roadway profile
• Speed limit
• Relation to junction

Not all intersections are alike. Certain kinds of intersection accidents have been shown to occur due to the geometry of the intersections in relationship to the traffic flow. The Center for Advanced Transportation Systems Simulation at the University of Central Florida (UCF) has analyzed over 1,500 intersection accidents and discovered a predictable pattern for certain intersection configurations. Their research has created a profile manual that is helpful in locating intersections with high crash and fatalities numbers.

The results of the research is fascinating. For instance, simply increasing motorists' awareness of an intersection by the location of the stop sign; can decrease the number of accidents. Another recommendation is to install rumble strips at intersection approaches. Rumble strips are usually recommended for application where pavement markings like 'STOP AHEAD' signs or flashers fail to eliminate high traffic accident occurrences. The study showed that adding a rumble strip to a stop sign-controlled intersection reduced rear-end crashes by least 50%.

Our prayers go out both families involved in this tragedy. The accident is still being investigated. However, bicycle accident attorney I am curious if the intersection in question was equipped with rumble strips or pavement markings. Based upon UCF;s research I urge the Florida's Department of Transportation to mandate rumble strips at all major intersections.

Florida like most states permits the defendant in a personal injury claim to force the plaintiff (claimant) to undergo a physical and sometimes even a psychological examination. Florida Rules of Civil Procedure 1.360 is the rule that provides the guidelines as to how the examination is supposed to take place. The examinations are commonly referred to a "Independent Medical Examinations" but there is usually very little that is independent about them. Instead they are usually unpleasant and invasive examinations conducted by doctors that are highly paid and trained to limit the claims of the injured.

The first step is that there has to be a formal request made identifying when, how and where the examination is going to take place. The person conducting the examination is required to be a qualified expert in the condition or injury that is in question. So a gynecologist is not permitted to do an orthopedic examination.

The examination can take place without the Court's permission provided that the time, place, manner, conditions, and scope of the examination is reasonable and acceptable.

As a bicycle accident lawyer in Florida I have handled cases where the condition in controversy is not physical, such as a traumatic brain injury or emotional trauma. These types of conditions may require a complex examination performed by a neuropsychologist, psychiatrist and neurologist.

When a child is injured in Florida a parent or guardian is permitted to attend the examination unless it can be shown to the court that the parent's presence will interfere with the results.

The defense is usually very careful about who they hire to perform these types of examinations on their behalf and often choose from a very select list of experienced, defense oriented and highly paid professional witnesses. They are purposely selecting examiners who will be able to convince a jury that a persons claimed injuries are either frivolous or unrelated to the accident at issue.

Once the examination is complete a report of the findings has to be provided to the plaintiff's attorney. Either party is then free to call the examiner as a witness to their case at trial.

Today we will be attending the examination of a client we represent who was injured in a car accident near Ft. Myers, Florida. The examination will take place in West Palm Beach, Florida and we have requested the court to impose certain limitations as to how the examination will take place. We always insists that an attorney from our office attend the examination and videotape the actual examination, to make sure it is conducted appropriately. In anticipation of the examination we see protection from the court and obtain an order that puts both the examining doctor and the defense lawyers on notice of our attendance. To read a copy of our Order Agreed Order as to Compulsory Medical Examinations-9976.pdf

As a lawyer in Miami who helps those injured in a car or truck accident we also do everything possible to make sure our clients have the greatest opportunity to successfully obtain compensation for their injuries. It is very important to carefully control the defense examination process and never allow our clients to be left alone in a compulsory examination.

Continue reading "When The Defense Examines an Injured Plaintiff" »

As a former bicycle racer and as a Florida bicycle injury attorney, I know that South Florida is a very dangerous place to ride a bicycle. The tragic death of Aaron Cohen, a 36 year old Miami father and husband, mowed down in a hit and run car crash Miami's Key Biscayne--Miami-Dade's most popular cycling circuit--causes one to question how these types of catastrophes can be avoided. Mr. Cohen's death occurred nearly two years from the day that Christophe LeCanne, another cyclist, lost his life in virtually the same place.

Triathlete Thomas Jennings is recovering in a Kendall trauma center after he was hit by a car in Northwest Miami-Dade. He suffered a shattered knee and an open fracture that required screws, bolts, and a plate to put back together.

Like many Miami cyclists, Mr. Jennings and Mr. Cohen have the responsibility of supporting young children. A catastrophic car crash can leave a family both physically and financially devastated. According to statistics, severe head injuries account for about one third of hospital emergency room visits for all bicycle-related injuries.

Florida has very specific laws regarding how to ride a bicycle on public streets. Florida Statute §316.003(2) defines a "bicycle" as a vehicle that is human powered and capable of achieving speeds over 20 mph. Florida Statute Section 316.2065 mandates that bicycles ridden after sunset and before sunrise have a front white light that is visible from at least 500 feet and a rear red light that is visible from 600 feet.

Anyone riding a bicycle under 16 years of age must wear a properly fitting helmet that is certified by a nationally recognized safety association. The law also requires that one hand be kept on the bars at all times.

According to Florida Statutes §316.2065(10) and (11), cyclists are permitted to ride a bicycle on the sidewalk and are provided with all of the rights and duties that are applicable to a pedestrian in the same circumstances.

Key Biscayne is often used by cyclists to train because of its central location, the bridge, and breathtaking views of the Miami skyline. However, in reality, Miami offers little alternatives. The recent epidemic of bicycle/car collisions highlights the immediate need for Key Biscayne to be made safer. I recommend the speed limit be lowered to 20 mph for all cars and trucks and a greater police presence on both the east and west bound road from the toll booths to the Village of Key Biscayne. I would also recommend more signs that flash, reminding drivers to be cautious and on the look out for cyclists, and the complete blocking of one entire lane for bicycle use in the early morning hours between 5-9 AM.

As a MIramar bicycle crash injury lawyer I recommend that all cyclists always use a bicycle helmet that has been properly fitted, as they are the most effective means in reducing the severity of a head, brain, and upper facial injury. We also urge all cyclists to make sure they have valid uninsured motorist coverage on their car insurance to protect them in the event they are hit by a car with little or no insurance coverage available to compensate them for medical expense, lost wages and injuries. Our thoughts and prayers go out to the families of these cyclists.

As a Florida bicycle injury lawyer and former amateur bicycle racer I know a lot about crashes and the effect they have on both a cyclist physically and mentally. The most common question posed after most serious bicycle accidents is, "how did it happen?"

According to a recent New York Times article, figuring out what went wrong just got a lot simpler with the use GPS device analysis. Serious cyclists now often train using Garmin-type cyclometers that are mounted on the handlebars. Traditionally, these devices would tell the rider information regarding speed, heart rate, watts and pedal cadence. For our Broward bike injury law firm, the GPS device produces valuable data used to prove fault and location in complex bike/car collisions, especially when there are no independent witnesses.

Think of the bike GPS as the "black box for bicycle wrecks". This poses an interesting question for both the defense and prosecution of injury cases. Our Miami cycling crash lawyers recommend that any cyclist involved in a crash immediately download and save the GPS data so that it will be preserved and that the defense does not claim a spoliation of evidence defense.

Lastly, our Broward County bicycle injury lawyers always recommend that you use a helmet no matter where you ride. Make sure that the helmet is both properly fitting and not damaged.

As a Florida car wreck attorney I know that many laws are designed to prevent people from obtaining justice for their injuries. For instance, Florida Statute §627 prevents those injured in Florida car, truck, bicycle or pedestrian accidents from recovering for injuries caused by another unless those injuries result in:

Significant and permanent loss of an important bodily function.
Permanent injury within a reasonable degree of medical probability.
Significant and permanent scarring or disfigurement.
Death.

This means that one could be injured in a car accident, through no fault of their own, end up with time in the hospital or doctors' offices with pain, and not be able to obtain any compensation for their pain and suffering unless it falls withing those specific categories. Often, this is a surprise to our car accident clients and is one of the most hotly-contested issues in motor vehicle litigation in Florida.

Moreover, this law is hidden in the insurance section of the Florida Statutes. It is nowhere to be found in either the Motor Vehicle or Torts sections.

While our Miami car accident law firm hopes that if you are involved in a car accident that you are not injured, we urge you to seek the appropriate medical care immediately and follow up with your health care providers' recommendations. We also recommend that you document all of your physical complaints as the defense will surely try to prove that your injury does not fall within the limited definitions of Florida Law.

I want you to know as a parent, and as a Miami traumatic brain injury lawyer, nearly 300,000 children ages 14 and under are treated in hospital ERs for bicycle related injuries every year. Half of these kids are diagnosed with traumatic brain injuries.

75 percent of fatal head injuries among child bicyclists could be prevented with a bicycle helmet. So why don't parents insist that their children wear them? Why don't local, state or federal lawmakers make it a crime to allow children to ride bicycles without a helmet? Florida Statute Section 316.0265 has a mandatory helmet law for children sixteen years and younger. But why just stop at 16? That is an absurd and crazy law and literally suggest that 16-, 17-, and 18-year olds; do not need helmets. Hell, everyone needs a bicycle helmet, even professional racers.

Now, thanks to the Epilepsy Foundation of Florida is offering free helmets. The program is funded by a grant from the Florida Department of Transportation.