Florida Injury Lawyers Blog

A traffic citation given to one of the drivers involved in an automobile accident does not necessarily prevent recovery for injuries sustained by the alleged at-fault driver himself or herself. For example, the officer is seldom an actual eye witness to the motor vehicle accident and may designate the wrong party as the at-fault driver in the accident report.

In a recent automobile accident matter, we represented a bicyclist who was charged with a right-of-way violation at an intersection. A review of the actual Accident Report completed by the officer, who was not present at the scene of the accident, revealed numerous inconsistencies throughout the report, including the specified location of the accident. Furthermore, our investigation at the actual scene of the accident convinced us that the motorist who hit our client was more likely to have been at fault than our client. Our information was used to obtain a favorable settlement for our client for his serious injuries.

The favorable result described above does not mean that persons injured in an accident involving a motor vehicle will always be compensated for their injuries through settlement negotiations or trial, even in a comparative negligence state as Florida. What it does mean is the following: the driver in an automobile accident situation who is issued the traffic citation should consider seeking legal advice as to his/her potential rights particularly where he/she sustained serious injuries and believes that he/she was wrongly issued the citation by the reporting officer.

We would also recommend that any driver/pedestrian who is involved in an automobile accident should "insist" that the reporting officer complete a formal Accident Report. Why? Because a Drivers Exchange of Information generally does not provide any information whatsoever as to the actual details of the accident. As described above, the Accident Report may come in very handy in determining just which party was more likely to have been at-fault and/or the extent of comparative negligence, if any.

Posted by Troy & Schwartz | Permalink | Email This Post

Posted In: Automobile Accidents , Injuries Automobile Accident

Bookmark:

Contractual Agreements often contain a provision requiring any legal dispute between the parties to be settled by binding arbitration instead of a lawsuit. More often than not, the terms of the arbitration provision in a contractual agreement are non-negotiable, and very often the parties signing such an agreement do not “come to the agreement” as parties with equal bargaining power. Often times, one of the parties may not even understand the full implication of the arbitration provision should a dispute between the parties ever arise.

We would like to emphasize that alternative dispute resolution procedures such as mediation and arbitration do have their place and can reduce the costs and time associated with prolonged litigation. A serious problem arises, however, where the arbitration agreement attempts to so “overly” protect one of the parties, that the arbitration agreement is invalid based on procedural and substantive unconscionability and/or is contrary to public policy.

Courts have frequently been called upon to determine the enforceability of arbitration agreements. In fact Florida law is very clear that courts have the obligation to determine whether a written agreement to arbitrate is valid when deciding a motion to compel arbitration. See Global Travel Marketing, Inc. v. Shea, 908 So. 2d 392 (Fla. 2005).

Many times arbitration agreements are upheld. Courts will not, however, uphold an arbitration agreement where the arbitration agreement is found to be void as contrary to public policy. Where the Contractual Agreement, which contains an “arbitration agreement” provision, also contains a severability clause, the court may also simply sever the offending arbitration agreement provision from the Contractual Agreement and find that the rest of the agreement is acceptable.

Previous blogs have addressed conduct generally associated with nursing home negligence and/or abuse. Individuals reading this blog may not realize that many nursing homes are now seeking to limit damages awarded to the injured resident for the nursing home’s negligent conduct by requiring the resident and/or his/her legal representative to sign an Arbitration Agreement in connection with admission to the facility. Yes, an admission to a nursing home, generally involves a formal contract, folks. Perhaps not surprisingly, such arbitration agreements have been “attacked” by injured nursing home residents as being void as contrary to public policy and inconsistent with the provisions for patient’s remedies under Florida’s Nursing Home Resident’s Act, also known as the Nursing Home Bill of Rights.

Many times, admissions to nursing homes occur where the resident and family members are making very difficult decisions concerning their elderly or sick family member’s quality of life. Most individuals are not signing nursing homes admissions documents such as arbitration agreements in contemplation of future personal injury litigation because they presume that their loved one will be well taken care of.

What happens if the nursing home resident is a victim of nursing home negligence and/or abuse and an arbitration agreement was signed as part of the admissions process? It all depends on whether the arbitration agreement is valid or invalid. The following discussion contrasts an invalid nursing home arbitration agreement with an acceptable nursing home arbitration agreement according to Florida law.

Continue reading " Nursing Home Negligence Litigation and Arbitration Agreements: The Intersection of Contract Law and Negligence Law " »

Posted by Troy & Schwartz | Permalink | Email This Post

Posted In: Nursing Home Negligence

Bookmark: