A Florida Motorcycle Accident Lawyer’s View on Sovereign Immunity

The State of Florida enforces complex legal protocols that must be complied with to sue a governmental agency that is potentially at fault for causing an accident resulting in a personal injury. The area of the law that pertains in these matters is called sovereign immunity, which basically means protecting the crown or king–in this case, the State of Florida. As a lawyer who has represented injured clients and investigated thousands of car accidents and slip-and-fall claims across Florida for more than 25 years, I believe the sovereign immunity notice law serves as a minefield designed to trap and trick unwary personal injury lawyers and the people they are trying to help. For example, consider the case of a motorcycle accident in the City of Coral Springs, Broward County, Florida. Officer John Malvin is a City of Coral Springs motorcycle officer, who while at work, was hit by a school bus owned and operated by a governmental agency, the School Board of Broward County. Note that this accident occurred in August 2011, and the case was finally resolved in 2016.    To further complicate the issues surrounding this incident, Officer Malvin was deemed to be operating in the course and scope of his employment as a police officer at the time, so the City of Coral Springs paid him worker’s compensation benefits.  He then assigned his claims to the City, meaning that now they could and would try to recover the money paid the officer from the School Board. Once reimbursement was satisfied, any remaining money would go to Officer Malvin.   To recap, one Florida city employee (Malvin)...

Documenting the Extent of a Personal Injury in Florida

Temporary or Permanent? A great debate rages in courtrooms across the country, especially in motor vehicle accidents in Florida as to whether or not an injury is in fact permanent. The distinction can be significant in Florida motor vehicle accidents as it can make the difference in determining what a plaintiff is legally entitled to recover. Buried deep within Florida’s insurance statute–not the tort or motor vehicle statute–lies the legal threshold for determining the appropriate damages a plaintiff can seek in a car accident. §627.737 Tort exemption; limitation on right to damages; punitive damages.— (1) Every owner, registrant, operator, or occupant of a motor vehicle with respect to which security has been provided as required by ss. 627.730-627.7405, and every person or organization legally responsible for her or his acts or omissions, is hereby exempted from tort liability for damages because of bodily injury, sickness, or disease arising out of the ownership, operation, maintenance, or use of such motor vehicle in this state to the extent that the benefits described in s. 627.736(1) are payable for such injury, or would be payable but for any exclusion authorized by ss. 627.730-627.7405, under any insurance policy or other method of security complying with the requirements of s. 627.733, or by an owner personally liable under s. 627.733 for the payment of such benefits, unless a person is entitled to maintain an action for pain, suffering, mental anguish, and inconvenience for such injury under the provisions of subsection (2). (2) In any action of tort brought against the owner, registrant, operator, or occupant of a motor vehicle with respect to which security has been provided...

A Simple Miami Car Accident Case Gets Complicated

Charles Terek’s 2004 car accident case in Miami has taken one of the strangest legal journeys I have seen in more than 20 years of practicing law in Florida. From the record, it is unclear how the accident happened, though most likely he was rear-ended by the vehicle driven by Paul Pugliese, and that collision caused Mr. Terek to sustain a spinal surgery known as a percutaneous discectomy. ARVE Error: no video ID set The first unusual thing about this case is that Mr. Pugliese admitted to causing the accident, and he admitted that Mr. Terek’s surgery was necessitated, or caused, by injuries Mr. Terek suffered in that accident. The orthopedic doctor hired by Mr. Pugliese himself examined Mr. Terek and confirmed his injuries. Dr. Stephen Wender opined that the surgery was in fact necessitated by the accident and that after the surgery Mr. Terek had reached what is commonly referred to as Maximum Medical Improvement or MMI. He relied in part on a Magnetic Resonance Image (MRI), which confirmed no fractures but revealed one herniated disc, consistent with the surgical procedure. MRIs are the gold standard for diagnosing and proving spinal injuries in these types of accident cases. Leer este artículo en español MAXIMUM MEDICAL IMPROVEMENT (MMI) MMI is a key term in motor vehicle cases in Florida because it suggests that the plaintiff has crossed the magical threshold of having a permanent injury and therefore should be entitled to make a claim for pain and suffering and other non-economic damages, rather than just lost wages and medical bills. To read more about what PIP (Personal Injury Protection) and...

Claiming Lost Wages in a Miami Personal Injury Case

Robert Robertson seems like a typical member of the South Beach, Florida health and fitness community. He works as a personal trainer and massage therapist for celebrities and other wealthy clients at a number of luxury hotels. One night while riding his scooter to work, as he traversed a section of pavement being resurfaced by Maggolc, a general engineering and road construction company located in Miami, he hit a protruding manhole cover–causing him to fall from the scooter and sustain injuries. JURY VERDICT He sued Maggolc for his past and future medical expenses, pain and suffering, lost wages and lost future earning capacity. The jury returned a verdict totaling $532,294.54 for him, as follows: Past Medical Expenses of $17,294.54 Future Medical Expenses of $20,000.00 Pain and Suffering of $250,000.00 Past Lost Wages of $85,000.00 Future Lost Earnings of $160,000.00 What makes this case interesting to me, as a personal injury lawyer in Miami, was Mr. Robertson’s claim for lost wages and the jury’s verdict. PROVING LOST WAGES CLAIMS IN A MIAMI PERSONAL INJURY CASE NO DOCUMENTATION OR TAX RETURNS Mr. Robertson had not filed any tax returns and produced no bank records, Social Security earning history, receipt books, credit card slips, client lists, appointment books, or any other form of documentation to prove his lost wages. Moreover, he did not possess a license to perform massages in the State of Florida, and instead testified he was permitted to “touch people for money” because of his credentials as an ordained minister. Notwithstanding this lack of proof, both the Miami-Dade Jury and Trial Judge Spencer Eig believed him, as reflected in...

Accidents Caused by Police

As a Miami accident attorney, Uninsured Motorist Insurance is without question the most important insurance drivers can buy in Florida to protect them and their families in the event they are involved in a traffic accident. UM is designed and sold to pay people who have been involved in traffic accidents either in cars, trucks, on bicycles, or even crossing the street, when the driver who caused the accident either has no insurance or not enough to compensate the victim. Many have asked Miami accident attorneys, “What happens when a car crash is caused by a police officer, sheriff, or another person acting in an official capacity as a governmental agent or employee?” Recently, a Florida man, Scott Christopher Siergiej, was severely injured in his back and ankle while he was working, when a motorcycle operated by a Lee County Florida Sheriff collided with him. Fortunately—or not—Mr. Siergiej had purchased Uninsured Motorist coverage from State Farm. Lee County, like virtually every other governmental agency in Florida, enjoys protection from legal liability based upon the ancient legal concept known as sovereign immunity. Sovereign immunity is derived from our legal ancestors in England at a time when the Crown or King could commit all sorts of atrocities upon their subjects without consequence. Somehow this medieval legal concept has survived the test of time and arguments by personal injury lawyers in Miami, and it continues to provide caps on damages and other legal protections when negligence is committed by public schools, hospitals like Jackson Memorial Hospital and the Broward Hospital District, the Department of Children and Family Services, Florida’s Department of Transportation,...

Florida Must Lower Blood Alcohol Limits– Now

Drunk driving accidents are not really accidents; they are crimes. They kill thousands of innocent people every year. The National Transportation Safety Board has proposed a solution that I believe is right–lower the legal blood alcohol level from .08% to .05% in hopes of saving lives. Of course, the NTSB makes only recommendations, not laws. It would be up to Florida’s Governor Scott and our legislature to listen. And naturally there are critics of the proposal–primarily The American Beverage Institute, the freightenly powerful lobby that represents 8,000 restaurants and bars. ARVE Error: no video ID set According to Scott Kotler, an experienced DUI defense lawyer and founding member of the Attorney Breakfast Club’s Miami Chapter, “The law states an individual cannot drive a vehicle if they are under the influence of an alcoholic beverage or a controlled substance to the extent that their normal faculties are impaired. This can be proven without even knowing what the individual’s blood alcohol level is. Florida has passed a limit of .08, at which point there is an inference that those faculties are impaired …if the new limit passes, then that inference will be at .05. That’s about one solid drink (1.5 oz. of alcohol) in a 150-lb. person…so what we are effectively saying is you can’t have one drink and drive. If that’s what we are saying…then why not make it 000? I personally feel .08 is a good cut-off point…” Like Mr. Kotler, I believe that lowering the legal levels will likely increase the number of citations for driving under the influence, but it won’t eliminate the problem entirely. I have...
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