Widow Suffers Unfair Justice in Florida Wrongful Death Case Involving Mesothelioma

This week a Florida appellate court issued a chilling opinion preventing a widow from collecting wrongful death damages–following the death of her husband from exposure to asbestos. John Kelly had worked in construction from 1973 to 1974. He married Janis Kelly in 1976.  In 2014 he was diagnosed with mesothelioma, and he and his wife sued several defendants, including Georgia-Pacific and other manufacturers of asbestos, for strict liability.1 The other defendants include: UNION CARBIDE CORP., PREMIX- MARBLETITE MANUFACTURING CO., and IMPERIAL INDUSTRIES, INC., The defendants moved to dismiss the claim of Mrs. Kelly, as his surviving spouse, for wrongful death damages on the basis that they were not married at the time that Mr. Kelly would have been exposed to the asbestos. The Honorable Carol Lisa Phillips, a Broward County Florida trial court judge, agreed with the defendants and dismissed the case on the grounds that Florida common law requires that in order for a non-injured spouse to be entitled to receive compensation for the loss of consortium, services, and other damages for the injuries of the injured spouse, the couple must first be legally married. This legal concept is known as the Marriage Before Injury Rule, and in this case, at the time of the injury, the Kellys were not yet married. Mrs. Kelly and her lawyers appealed the dismissal to Florida’s 4th District Court of Appeal, which issued a detailed opinion affirming the trial court’s dismissal. The Appellate court reasoned that Florida’s Wrongful Death Act does not supersede Florida’s common law requirement that a spouse must be married to the decedent before the date of the decedent’s...

Medical Malpractice in Florida: Supreme Court Rules in Birth Trauma Case

Forever . . . Florida’s State-run agencies, like public hospitals or the DOT, have long hidden behind the shield of the sovereign immunity statute, which limits the amount of recovery an injured person or grieving family can obtain in a civil personal injury or wrongful death lawsuit. The statute has also limited the fees that lawyers could charge to sue these agencies–making such cases economically impossible for many of the best trial lawyers to accept.1Section 768.28(1), Florida Statutes, waives sovereign immunity protection for actions at law against the state or its agencies or subdivisions for tort money damages and limits recovery under the statute to $100,000 per person or $200,000 per incident. The one exception is to get a claims bill passed, which is essentially a special law that permits payment for more than the statutory damage cap. Claims bills have been traditionally expensive and very difficult to get passed in all but the most catastrophic cases.2Thus, the Legislature specifically directs that recovery of any amounts that exceed the limited waiver of sovereign immunity may be collected only by way of a legislative claims bill. Until now. Supreme Court Rules in Birth Trauma Case This week Florida’s Supreme Court reviewed a case that arose out of the traumatic birth injury of Aaron Edwards.3SEARCY, DENNEY, SCAROLA, BARNHART & SHIPLEY, etc., et al., Petitioners, v. STATE OF FLORIDA, Respondent. Supreme Court of Florida. Case No. SC15-1747. January 31, 2017. Because of the negligence of employees at Lee Memorial Hospital, he sustained a catastrophic brain injury. He hired another Florida medical malpractice law firm to sue the hospital, under a standard contingency-fee...

Disney Facing Potential Wrongful Death Lawsuit After Alligator Attack?

Tragedy strikes in Orlando, FL, yet again as the remains of two-year-old Lane Graves have been discovered after the child was reportedly attacked and pulled into the water by an alligator at Walt Disney World’s Grand Floridian Resort. The incident was said to have happened while the toddler and his mother were attending an outdoor movie night at the resort. Witnesses of the incident said that they saw the mother with the toddler, who was wading on the edge on the lake, which seems to resemble a small beach. At approximately 9:00 p.m., Lane Graves was attacked and pulled into the lake by an alligator reported to be four-to-seven feet in length. His father’s attempts to dive in after him and force the alligator’s mouth open to release the child were unsuccessful as the boy had already been pulled under the murky water. Tragically, his remains were discovered, 12-15 yards from where the attack occurred, by an Orange County dive team after a grueling 16-hour search of the property. His body was found intact with a few puncture wounds and, while an autopsy has yet to be performed, it is likely that the cause of death was drowning. Disney World commented on the incident by saying that in the 45 years since the canals have existed there has never been a report of an attack like this. The Seven Seas Lagoon, as the lake is called, is a man-made body of water that separates the resort from the Magic Kingdom park and stretches into a series of canals that wind through the entire Disney property. While the hotel did...

Dealing With Florida Wrongful Death Actions

Wrongful Death Actions Florida’s Wrongful Death Act provides surprisingly limited damages to the survivors.  It also has very narrow definitions as to who a survivor is and is not.  Of course the section of the Florida Statutes entitled Wrongful Death contains none of the definitions of who a survivor is and how a survivor is defined.  Rather, for some inexplicable reason, the definition of survivor is found under the General Negligence Statute nearly at the bottom in §768, where survivors are defined as follows: “Survivors” means the decedent’s spouse, children, parents, and, when partly or wholly dependent on the decedent for support or services, any blood relatives and adoptive brothers and sisters. It includes the child born out of wedlock of a mother, but not the child born out of wedlock of the father unless the father has recognized a responsibility for the child’s support. “Minor children” means children under 25 years of age, notwithstanding the age of majority. “Support” includes contributions in kind as well as money. “Services” means tasks, usually of a household nature, regularly performed by the decedent that will be a necessary expense to the survivors of the decedent. These services may vary according to the identity of the decedent and survivor and shall be determined under the particular facts of each case. “Net accumulations” means the part of the decedent’s expected net business or salary income, including pension benefits, that the decedent probably would have retained as savings and left as part of her or his estate if the decedent had lived her or his normal life expectancy. “Net business or salary income” is...

Florida’s Release Law Unenforceable in Florida Keys Diving Accident Case

Millions of thrill-seeking tourists visit Florida every year, and many of them engage in risky activities like jet skiing, parasailing, skydiving, scuba diving, and bouncing in these new giant trampoline warehouses called Sky Zones. Most of the owners and operators of those for-profit businesses require participants to sign waivers and releases promising not to sue them if the participants are injured or killed. But are those releases enforceable in Florida if you get hurt? ARIZONA WOMAN DROWNS IN KEYS DIVING ACCIDENT On the morning of the dive that led to her death, Mrs. Diodato and her husband arrived late to a scheduled deep-water dive. Rather than have her companions wait for the Diodatos to read and sign a special release used for deep-water diving, the dive instructor, who was also sued for her wrongful death, relied on a release the couple had signed a few days before. That diving instructor had assumed the release would be valid for an entire year provided that a certain box was checked on the back of the document. Even though the “valid-for-a-year” box was not checked and the release that was previously signed was not the kind that is used for deep-water diving, a Miami trial judge dismissed the Diodatos’ case. This week, a Florida appellate court invalidated the release signed by that Arizona woman, Aviva Diodato, who drowned to death while she and her husband were scuba diving in the Florida Keys. Justice was served by the 3rd District Court of Appeal in the case of Diodato v. Islamorada Asset Management. I am sure it is no coincidence that the brilliant Judge Leslie B....

Car Insurance and How It May Affect A Wrongful Death Case

What happens when you get into a motorcycle accident in Florida with someone whose insurance has expired? It depends on why and how the insurance policy became inactive. If the policy lapsed because of non-payment and the insurance company has mailed written notice to the address listed in the policy at least 45 days before the policy lapses, there will be no coverage. Florida Court Rules in Favor of Insurance Company in Wrongful Death Case This week, Florida’s Third District Court of Appeal heard the wrongful death case of a Miami man who was killed while riding his motorcycle. He was struck by a car owned by Eduardo Olivera and driven with Olivera’s permission by Robert Zaid Alsina. The family of the victim, Alfredo Rodriguez, sued Mr. Olivera and Mr. Alsina for their loved one’s wrongful death, only to discover that Mr. Olivera’s car insurance had become inactive about a month before the accident. Mr. Olivera thought he was insured with Security National Insurance Company. But following the tragic accident, when he was sued, his insurance company claimed his insurance policy had lapsed before the accident and therefore there was no money to pay the  Rodriguez family. The Rodriguez family and Mr. Olivera entered into a contract called a “Coblentz Agreement” for $2.5 million. Coblentz Agreements are legal agreements made between parties in lawsuits when there are disputes about whether or not there is insurance to cover a certain event. In cases like this they agree to an amount of money as a judgment and then the plaintiff assumes the rights of Olivera to sue his own insurance company...
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