Premise Liability, Personal Injury

Law Offices of Craig Goldenfarb, Esq. (Paul McBride) / Kelley Kronenberg (Maura Krause)

Motion for Final Summary Judgment granted

Stuart Partner Nora Bailey, Esq., prevailed on a Motion for Summary Judgment in a premises liability/personal injury matter styled Strangi, Robin and John v. Atlantic Southern Sealcoating and Paving, LLC. Our client, who was contracted to sealcoat and stripe the parking lot at a gas station, was sued for personal injuries after Plaintiff slipped on a painted portion of the lot more than four months after our work was completed. We moved for summary judgment based on the Slavin doctrine and argued that Plaintiff was impermissibly stacking inferences to prove her case. The case was made difficult by the fact that it became evident through discovery that our client had inadvertently used the wrong paint as required under the contract with the gas station, who accordingly joined in Plaintiff’s opposition to our Motion for Summary Judgment. Nevertheless, the Court found that the Plaintiff had failed to prove that using the right paint would have prevented Plaintiff’s fall and granted summary judgment on all counts. Read More.

Bailey, Nora R.; Pahl, Benjamin S

Newlin Law 

Defense Verdict

 

On June 2, 2023, Partners, Benjamin Pahl, Esq. and Nora Bailey, Esq., obtained a complete defense verdict after a four-day jury trial in an auto liability matter styled Plaintiffs v. Capp Custom Builders and Juan Luis Raya. The lawsuit arose out of a claim by the Plaintiffs, a motorcyclist and his passenger/girlfriend, wherein it was alleged that Defendant, Juan Luis Raya, acted negligently in operating a pick-up truck and enclosed trailer, owned by Capp Custom Builders, on US-1 in Brevard County, Florida.   Mr. Raya denied liability and asserted that Plaintiff Morgan had acted negligently by failing to observe traffic, causing him to rear-end the back of Mr. Raya’s trailer as he slowed to make a legal U-turn. 

 

The Defendant driver, Mr. Raya, testified throughout litigation and at trial that he stopped and looked for at least 5 seconds before leaving the job site to turn into US-1, and never saw the Plaintiffs’ motorcycle. The Plaintiffs, however, changed their story multiple times. Initially, Plaintiffs claimed that Mr. Raya had made a U-turn illegally in front of them, causing the crash. Prior to trial, they testified that Mr. Raya cut into their lane from right to left, or that he swung too wide when making the U-turn and ‘clipped’ the motorcycle. Finally, at trial, Plaintiffs testified to a new theory of liability – namely, that they could not recall what Mr. Raya had done wrong, but that he “appeared” in the roadway like a “flash.” Defense counsel, Mr. Pahl, was able to secure testimony from Plaintiff Morgan that he ultimately did not know what the Defendant had done wrong, and that he appeared in the road “like magic.” Additionally, the jury heard testimony and saw evidence that Plaintiff Morgan did not have a motorcycle endorsement, despite testifying otherwise, and both Plaintiffs admitted they were not wearing helmets. The defense was also able to elicit testimony and introduce evidence that the Plaintiffs had been to at least three restaurant/bars prior to the accident, where Plaintiff Morgan – the driver – had been drinking. There was no evidence submitted to the jury of Mr. Morgan’s impairment. Ms. Bailey elicited testimony from the passenger, Ms. Fuller, that she could not recall how many beers Mr. Morgan had drank, though she admitted it was at least 2. Following this testimony, the defense’s medical expert, Dr. Ronald Tolchin (pain and rehabilitation specialist), walked the jury through extensive medical records from Mr. Morgan’s PCP, which showed that he had reported drinking 4 beers daily years prior to and after the accident, had chronically elevated liver enzymes, and had been repeatedly told by his doctor to cut back.

 

Additionally, Defendants’ biomechanical engineer, Charles Proctor, Ph.D., testified at trial that the motorcyclist would have had 14.86 seconds with clear view of the trailer and more than adequate time to stop or evade the crash, and rear-ended the Defendant due to a simple lack of inattentiveness, worsened by the fact he had no motorcycle endorsement and therefore lacked the proper training to respond to an impending hazard.  Despite extensive argument and objection from Plaintiffs’ counsel, Ms. Bailey was successful in securing the accident reconstruction animation, prepared by Dr. Proctor, to be shown as a demonstrative aid during trial.  

 

Despite the clear liability issues, it was undisputed that the two motorcyclists were catastrophically injured, both requiring emergency trauma surgeries and sustaining mild traumatic brain injuries. Both underwent extensive rehabilitation stays and post-operative therapy, and Mr. Morgan required additional, subsequent surgeries to repair damage caused by the accident. Nonetheless, Dr. Tolchin opined that a right hip replacement, done more than 3 years after the accident, was unrelated to the crash given the severe degenerative osteoarthritis present on the day of the incident. Additionally, Ms. Bailey was successful in striking both Plaintiffs’ future medical expense claims, as Plaintiffs failed to produce anyone to testify as to medical cathey would need on an ongoing basis. 

 

Over the course of four days, the jury listened to the Plaintiffs testify about the devastating impact of the incident and the injuries on their lives.  In fact, the Plaintiffs called the defense CME physician (Dr. Tolchin) during their case to explain the gruesome nature of the injuries, which included pelvic, rib, and sternum fractures, extensive lacerations, and scrotal tears.  Plaintiff’s testimony that the Defendant driver appeared in the roadway like “magic” became the theme of the defense case, and it was argued by Mr. Pahl in closing that “more than magic” was necessary for Plaintiffs to meet their burden of proof. The jury was instructed on Florida’s rear-end presumption at the request of the defense, over objection and after substantial briefing on the issue by Ms. Bailey, that Mr. Morgan rear-ending the Defendant was presumptive evidence of his own negligence.

 

Plaintiffs’ counsel, Lead Trial Counsel for Dan Newlin, asked the jury in closing for an award of $7.4M (approximately $312,000 in total past medical expenses; the rest in pain and suffering). After deliberating for about two hours, the jury rendered a complete defense verdict in favor of Mr. Raya and Capp Custom Builders.  Read More.

Dismissal of UM Carrier

Stuart Senior Partner Chris Moore, Esq., obtained a dismissal of the UM carrier in the matter styled UM Claimant v. Co-defendant Alleged Tortfeasor and UM Carrier (Client). Plaintiff filed a suit for UM benefits arising out of an alleged red light violation turn accident against an out of country alleged tortfeasor. Our UM carrier client was served and we were able to locate the alleged tortfeasor in Canada and discovered they had significant liability limits. We obtained a dismissal of the UM carrier without payment of any settlement funds. Read more

Affirmed Dismissal

Senior Partner Chris Moore, Esq., and Appellate Partner Daniel Weinger, Esq., obtained a good result in a vehicular liability matter when the appellate court affirmed dismissal in the matter styled BI claimant v. Client. Plaintiff filed suit against a driver and his employer alleging personal injuries, including epidural injections and a multi-level lumbar fusion surgery that Plaintiff alleged arose from a rear-end car accident. Shortly after filing suit, Plaintiff dismissed the driver voluntarily, electing to only pursue the employer and then deposing the employee driver while he was not a party to the case and was not represented by an attorney. Many months later, after discovery was completed and the case set for trial, Plaintiff amended their complaint to bring the driver back into the case. We were retained to represent the driver and immediately filed a motion to dismiss based on the statute of limitations, which expired before he was added back into the case. In response, Plaintiff argued that the relation back doctrine applied. Following full briefing and a thorough argument at a hearing, we fully briefed the trial court on the applicable law and facts and the trial judge granted our motion to dismiss. Plaintiff appealed and the appellate court affirmed the dismissal. Read more

Moore, Christopher S.; Sparkman, James T

Defense Verdict on Causation

Admitted Liability; $173,000 2-level Cervical Disk Replacement; $618,000 Life Care Plan; Jury Defense Verdict on December 3, 2020.

Partners Chris Moore, Esq., (Stuart) and Jim Sparkman, Esq., (Boca Raton) tried a Post-Covid case to defense verdict in a rear-end accident case. The trial represented the first Post-Covid civil trial in the 19th Judicial Circuit. Before trial, we admitted liability on behalf of the defendants and vigorously defended causation.

Plaintiff called 3 treating medical providers (Dr. Stuart Krost, Dr. Harold Bach and Dr. Michael Hennings) and retained and called a neuro-radiologist (Dr. Eric Pfeiffer) to testify the accident was the cause of plaintiff’s injuries and surgery. Plaintiff incurred over $173,000 in medical bills, stemming primarily from a 2 level cervical disk replacement. In addition, the Plaintiff obtained a life care plan by Dr. Stuart Krost for future medicals in excess of $618,000. Plaintiff contended that he essentially never had prior neck problems and that the few prior medical visits he had with neck pain years prior were temporary, far less severe and he had not treated for more than 2 years prior to the subject DOA.

The defense focused on the property damage photographs and used a mechanical engineer to explain to the jury the low forces involved in the subject incident. In addition, the defense used board certified surgeon Dr. Gaetano Scuderi to opine that image studies did not support any recent injury to the spine from the subject accident, but showed long standing, chronic degenerative changes. The defense expert explained to the jury how the prior disc problems would not heal themselves, but would grow worse over time and lead to the need for the actual disc replacement surgery that occurred in this case. The defense also vigorously challenged plaintiff’s treating physicians on their billing and ownership interest in Ambulatory Surgery Center of Boca Raton, which was allegedly not disclosed to the plaintiff in violation of Florida Law. The defense was able to get a special instruction on Section 456.052, Florida Statutes, which requires surgeons to disclose financial interests that they may have in facilities, such as a surgery center. Read more

Defense Verdict

On August 16, 2019, Stuart Office Managing Partner Lauren Smith, Esq. obtained a Defense Verdict in the five day trial of Bocinsky v. Federated National Insurance Company. The case involved a Hurricane Matthew price and scope dispute with several claims handling issues that were unfortunately allowed into evidence at trial, including the timing of Federated National’s post-suit cure payment for $60,000 after the claim had originally been found to be below the deductible. Plaintiff sought an additional $160,000 at trial, including $100,000 for a completely destroyed dock and seawall, which the Defense maintained were excluded by the water damage/storm surge exclusion. Read more

Motion for Summary Judgment

Stuart Managing Partner Lauren Smith, Esq. obtained a motion for summary judgment in a  first-party insurance matter. In the case styled Water Extraction Team a/a/o Sonderman v. FedNat, Plaintiff received a partial assignment of insurance benefits from FedNat’s insured.  Three days later, FedNat and the insured entered into a settlement agreement that encompassed the entire claim.  Plaintiff moved for summary judgment, arguing that the release did not apply to its portion of the claim because the assignment preceded FedNat’s settlement.  Read more

$125,431.56 Fee & Cost Judgment against Plaintiff

Stuart Managing Partner Lauren Smith, Esq. obtained a favorable result in matter styled Pelecki v. FedNat. when trial court granted  - $125,431.56 Fee & Cost Judgment against Plaintiff. This first-party case was brought by a husband and wife for Hurricane Matthew damage.  On behalf of FedNat, we served separate proposals for settlement on the Plaintiffs, each with a setoff condition that applied if only one proposal was accepted.  The proceeds received by the settling spouse would be set off against any verdict obtained by the remaining spouse.  Mr. Pelecki accepted his $30,000 proposal while Mrs. Pelecki opted to go to trial.  The jury awarded Mrs. Pelecki just $15,000 of the $130,000 she sought in damages.  Post-verdict, the trial court setoff the $30,000 settlement from the $15,000 verdict, resulting in a net zero judgment in FedNat’s favor.  Read more