Daytona Beach Injury Lawyer Blog

At this point, we all know that texting while we drive is a bad idea. However, many of us just can't resist. The fact is that texting while driving leads to increased distraction and an increased risk of a collision.

Recent examples of the danger of texting while driving as follows:

On August 16, 2010, famed Beverly Hills plastic surgeon, Frank Ryan, died after he drove off of a cliff in Malibu, California. It has been widely reported that Dr. Ryan was "tweeting" at the time of the crash.

In 2008, a Union Pacific freight train and a Metrolink commuter train collided head-on in Los Angeles, California. 25 people died as a result. It was later revealed that the operator of the Metrolink train had been texting at the time of the collision and ran a red signal.

The Virginia Tech Transportation Institute has found that drivers who are texting are 23 times more likely to be involved in a collision than a driver who is not texting.

Testing done by Car & Driver found that texting and driving is more dangerous than drinking and driving.

Several states have enacted laws that would restrict or ban the use of cell phones while driving. In Florida, "Heather's Law" has been proposed. It would Prohibit the use of a cellular telephone while operating a motor vehicle except when using a headset or hands-free device. The bill was named after Heather Hurd, who was killed as a result of a collision with a truck driver who was texting while driving. Oprah Winfrey has created a website called Oprah's No Phone Zone. It is dedicated to urging everyone to put the cell phones down while driving.

Continue reading "Texting And Driving" »

It is hard to watch television or listen to the radio these days without coming across commercials from an organization called 1-800-ASK-GARY. These commercials utilize spokespeople who urge people to call "Gary" for assistance and guidance after being involved in automobile accidents. The true identity of "Gary" is never revealed in any of the commercials. 1-800-ASK-GARY is actually owned by a Florida chiropractor.

Recently, two men in Kentucky filed a lawsuit against a Florida-based law firm who, according to them, has ties with 1-800-ASK-GARY. James Rose and Christopher Rose filed suit against Winters, Yonker & Rousselle, P.S.C. (now known as Winters & Yonker, P.S.C.), and attorneys, Bill Winters and Mark Yonker. Winters & Yonkers, P.S.C. is a personal injury law firm with offices in Tampa, Florida and Louisville, Kentucky.

James Rose and Christopher Rose are former clients of Winters & Yonker, P.S.C. They have made some serious allegations against Winters & Yonker, P.S.C. which include:

1. Winters and Yonkers, P.S.C. committed professional legal misconduct by directly soliciting clients through 1-800-ASK-GARY;

2. James Rose and Christopher Rose were instructed by Winters & Yonker, P.S.C. to receive treatment at facilities owned by 1-800-ASK-GARY, in return for which Winters & Yonker, P.S.C. would receive case referrals;

3. Winters & Yonker, P.S.C. failed to advise their clients of their significant relationship with 1-800-ASK-GARY; and

4. A client of Winters & Yonker, P.S.C. received $101.77 from a $100,000 settlement after receiving nearly all of her medical treatment at 1-800-ASK-GARY owned facilities.

Continue reading "Lawsuit Filed Against Law Firm with Alleged Ties to 1-800-ASK-GARY" »

As a personal injury attorney practicing in Florida, I normally enter into contingency fee agreements with my clients. A contingency fee agreement is a contract entered into by a lawyer and a client where a fee is charged only if there is a favorable result. You may often see lawyers advertise "No fees or costs unless we win your case." These lawyers are entering into contingency fee agreements with their clients. The practice of using these contracts is common because personal injury litigation is often times expensive. Contingency contracts allow a plaintiff who has limited financial means to retain a lawyer to protect their rights.

When I enter into a contingency fee agreement with a client, I am required to provide him or her with a "Statement of Client's Rights". This document outlines the client's rights and some of my responsibilities during our representation. These rights include, but are not limited to the following:

• A contingency fee contract must be in writing and you have 3 business days to reconsider the contract.

• Before hiring a lawyer, you have the right to know about the lawyer's education, training and experience.

• A lawyer must advise you whether the lawyer intends to handle your case alone or whether other lawyers will be helping with the case.

• You have the right to know in advance how you will need to pay the expenses and legal fees at the end of the case.

• You have the right to be told by your lawyer about possible negative consequences if you lose the case.

• You have the right to receive and approve a closing statement at the end of the case before you pay any money. The statement must list all of the financial details of the entire case, including the amount recovered, all expenses, and a precise statement of your lawyer's fee.

• You have the right to ask your lawyer how the case is progressing and to have these questions answered to the best of your lawyer's ability.

• You have the right to make the final decision regarding settlement of a case. Your lawyer must notify you of all offers of settlement before and after the trial.

Continue reading "You Have Rights When You Sign a Contract with a Personal Injury Lawyer" »

Simply put, mediation is a supervised settlement conference presided over by a mediator who is specially trained. The purpose of mediation is to facilitate open and reasonable settlement discussions by all of the parties. Mediators are often attorneys or former judges. The role of the mediator is not to decide the merits or value of your case. The mediator is there simply to help the parties settle the lawsuit.

In Florida, all interested parties are required to attend mediation including, but not necessarily limited to: the plaintiff, the defendant, their respective counsel, corporate representatives of business defendants, representatives of insurance companies with full settlement authority and any other individual or entity who has an interest in the outcome of the claim. Any party who is required to attend and fails to do so is subject to sanctions by the Court.

The mediator normally opens the conference by introducing himself and the parties, outlining his qualifications and describing the process. The lawyers for the parties then have an opportunity to present a brief statement outlining the circumstances surrounding the incident giving rise to the lawsuit, damages and the evidence. Next, the mediator will meet privately with each side. These private meetings will normally result in a settlement offer by the defendants or a settlement demand by the plaintiff. The offer or demand is then submitted to the other party for consideration. The offer or demand may be accepted, rejected or countered. Further negotiations will then normally occur between the parties. Mediations are usually scheduled for a minimum of three to four hours but can last much longer.

Mediation is an excellent tool in settling personal injury lawsuits. The most attractive aspect of mediation is that it eliminates the uncertainty of proceeding to a jury verdict. That being said, if the defendant or his insurance company presents a final offer which is inadequate, there is often no other choice but to proceed to trial.

Continue reading "What is Mediation?" »

A sunbather was run over on the beach near Lenox Avenue in Daytona Beach on Wednesday. As a result of the accident, the sunbather, Carole Dalton, suffered a broken leg which required surgery. The driver of the vehicle was John Dowling, a Volusia County Beach Patrol Officer.

If Mrs. Dalton pursues an action against Volusia County, her recovery may be limited to $100,000. With some exceptions, an individual who has been injured as the result of negligence by the State of Florida and/or its employees is limited to a recovery of $100,000 for each person and $200,000 for each incident. Normally, the governmental employee responsible for causing the injuries cannot be sued individually. In addition to the State of Florida, the caps also apply to:

1) the executive department;
2) the legislature;
3) the judicial branch including public defenders;
4) the independent establishments of the State;
5) counties;
6) cities; and
7) corporations acting as agencies of the state.

Florida Statute 768.28 does provide a mechanism for an injured person who has incurred damages from governmental negligence in excess of $100,000 to recover the full amount of his or her damages. A "claims bill" can be introduced by a member of the Florida Legislature seeking to fully compensate the injured party. If the bill passes both legislative bodies and is signed by the governor, the claimant/plaintiff may be fully compensated. It is important to note that successful claims bills are extremely rare.

In April, Governor Charlie Crist signed SB 2060 into law. The law increases the limits of liability for the State and its agencies under Florida Statute 768.28. The new caps, which apply to all claims accruing on or after October 1, 2011, will increase to $200,000 for any one person and $300,000 collectively arising out of the same incident or occurrence.

Continue reading "Your Recovery is Limited When Suing the Government" »

Everyone knows that if you are driving a motor vehicle and cause an accident and someone suffers injuries, you and/or your insurance company are responsible for compensating the injured person for his damages. What you may not know is that if someone else is driving a vehicle you own and injures someone, you are also responsible. In Florida, a motor vehicle is considered to be a "dangerous instrumentality". Florida Courts have long held that a person who authorizes and permits a motor vehicle to be used by another person is liable for any damages caused by the negligent operation by the driver. This is often referred to as the "dangerous instrumentality doctrine."

There are exceptions to the dangerous instrumentality doctrine. There are circumstances when a car is loaned to another and that person may be deemed to have breached the owner's trust, resulting in a theft. These circumstances are rare and often times difficult to prove. However, when an owner does not truly give his consent to operate his or her vehicle, the owner should not be held liable. The courts have generally held that the owner of a vehicle is not responsible for the actions of servicemen and repairmen when his vehicle is being serviced, tested or repaired. Finally, an owner may not be held for intentional misconduct by another driver unless that intentional misconduct was foreseeable.

Next time you loan your car to someone else, keep in mind that if they injure someone while on the road, you may be responsible for their actions.

Continue reading "You May Be Responsible For The Actions Of Others When You Loan Your Vehicle" »

A Volusia County man and his daughter were killed in a boating accident on May 31, 2010 in the Intracoastal Waterway just south of Ponce de Leon Inlet, in New Smyrna Beach. The father and daughter died after their motorboat was run over by a larger boat. The daughter was nine months pregnant at the time of the accident.
The accident occurred around 4 p.m. near the Coast Guard Station and a part of Smyrna Dunes Park known as "dog beach" in Ponce Deleon Inlet. The area where the accident occurred is extremely popular with recreational boaters. Six people were in the smaller boat and seven people were in the larger boat. The people in the boats knew each other and were friends. The wake of a third boat may have contributed to the accident.
In addition to the deceased, two or three other boaters suffered injuries and were taken to Bert Fish Medical Center in New Smyrna Beach. Wildlife commission investigators are working to determine how the accident occurred.

Continue reading "Three Killed in New Smyrna Beach Boating Accident" »

Bullying is an epidemic in the United States. According to the Youth Violence Resource Prevention Center, nearly 30% of children in this country are involved in bullying as a bully, a target of bullying or both. This amounts to nearly 5.7 million children.

I am often contacted by parents whose children are the victims of bullying by other children. They are usually seeking compensation after the bullying turned violent and resulted in the child sustaining injuries. As you can expect, the bully almost always has little or no assets or means to satisfy a judgment. To many, the next logical step would seem to file a lawsuit against the bully's parents. Unfortunately, many times filing a lawsuit against the bully's parents proves unsuccessful.

Generally speaking, parents are not financially responsible for injuries their children cause merely because of paternity. However, there are four exceptions to this general rule:

1. Where the parent entrusts the child with an instrumentality which, because of the child's lack of age, judgment, or experience, may become a source of danger to others. These "instrumentalities" can include things like motor vehicles or weapons.

2. Where the child committing the tort is acting as the servant or agent of its parents.

3. Where the parent consents, directs, or sanctions the wrongdoing.

4. The parent fails to exercise control over the minor child although the parent knows or with due care should know that injury to another is possible. This exception often hinges on prior communications between the bully and their parent(s) and/or prior bullying that the parents are aware of.

If you have a child who is being bullied, take a look around http://stopbullyingnow.hrsa.gov/kids/, which is helpful website provided by the U.S. Department of Health and Human Services.

Continue reading "When is a Parent Responsible for a Child's Bullying?" »

When I first meet with clients who have been injured in a motor vehicle accident, I always ask them about their auto insurance. They will often tell me that they have "full coverage." These clients are often disappointed to discover that their insurance is woefully inadequate to protect them or compensate them when it matters most.

If you own a vehicle which is registered in Florida, you are only required to purchase $10,000 in personal injury protection (commonly referred to as PIP) and $10,000 in property damage liability coverage. PIP will pay for your medical expenses and lost wages regardless of who caused the accident. Property damage liability coverage pays for damages that you cause to another person's property.

Florida law does not require you to maintain other valuable insurance coverage. Four common types of coverage that you should consider purchasing are:

Bodily Injury Liability pays others for injuries or death for which you are responsible. This coverage also provides legal defense for you if the injured party files a lawsuit seeking damages.

Uninsured / Underinsured Motorist covers you for damages caused by a driver who has no insurance, a driver who has inadequate insurance or a hit-and-run driver. The Insurance Research Council has estimated that 23% of Florida drivers have no insurance. This percentage does not take into account Floridians who have insurance that does not provide bodily injury liability coverage.

Collision pays for damage to your vehicle when it is hit by another vehicle.

Comprehensive covers your vehicle for losses caused by an incident which is not a collision. This may include incidents like thefts, floods or fires.

The aforementioned coverages are not an exhaustive list of all types of insurance coverage available to you. However, purchasing some or all of these coverages will definitely give you more piece of mind if you are involved in an auto accident.

Continue reading "Why "Full Coverage" Auto Insurance is Not Enough" »

A Daytona Beach teenager was critically injured yesterday when he lost control of his SUV on Interstate 95 near Scottsmoor, Florida and was ejected from the vehicle. The driver was cited by Florida Highway Patrol earlier in the day for his failure to wear his seat belt.

Florida Statute Section 316.614 requires the operator of a motor vehicle in Florida to wear a seat belt. It also requires front seat passengers to wear a safety belt or be restrained by a child safety device. Recent amendments to Section 316.614 allow law enforcement officers to stop a vehicle based solely on the driver's or front seat passenger's failure to wear a seat belt. Prior to the amendment, police could only stop a vehicle if the officer suspected some other traffic or license violation. The cost of a seat belt violation in Florida is $30. The cost of a violation for a child that is not properly restrained in $60.

In addition to incurring fines and points on your license, you may also negatively impact your personal injury case when you don't wear a seat belt. If warranted, a defendant in an automobile negligence action can assert the "seatbelt belt defense". The Florida Supreme Court has described the seatbelt defense as "an attempt to prove that the non-use of a functional and available restraint system by the plaintiff either caused or measurably worsened the plaintiff's injuries that resulted from the defendant's actions, and based on that non-use (even though the non-use preceded and did not cause or contribute to the accident), the plaintiff's recoverable damages should be barred or reduced." In other words, if a jury finds that you would not have sustained some or all of your injuries if you had been wearing your seat belt, your damages may be reduced or even eliminated.

What is the most important reason to wear a seat belt? You are much more likely to be killed in a car crash when you are not wearing a seat belt. Wearing your seat belt could save your life or the life of a loved one.

Continue reading "Personal Injury Claims Often Damaged by Failure To Use Seat Belt" »