Law firms practicing in Florida have largely accommodated to the difficulties of social distancing. Some firms are even advertising the new social distancing, remote conferencing and other methods of preventing COVID-19 spread due to contamination from corona virus.
The Courts have adapted by implementing social distancing policies and canceling or postponing most hearings and procedures which require litigants, jurors and court personnel to gather in close proximity. Jury trials, grand jury proceedings and, in many cases, face to face hearings have therefore been cancelled or continued until safer times.
It would be dangerous, however, to assume that trial and appellate proceedings will automatically be extended due to the difficulties of litigating during the pandemic.
So, while many Federal and State Courts have entered orders generally changing deadlines for filing appeals, litigators must be aware that absent an order of general applicability, courts will not automatically extend deadlines absent specifically alleged details as to why corona virus is contributing to or causing the need for extension said to be needed. These decisions are fact based on the particular circumstances of a given case.
Judges are not, however, willing to allow “litigation to grind to a halt”, as that would only “exacerbate … the detrimental effects of the crisis” (Horning v. Resolve Marine Group 1S.D. Fla. Mar 30 2020)
In Horning, the parties filed a joint motion to continue a workman’s compensation case because the accident victim had not reached maximum medical improvement. This, argued the parties, was preventing experts from determining the victim’s permanent injury and degree of disability. The court denied the motion, stating that experts would be able to come to opinions, from review of records of treaters and examination of the victim.
The parties then moved for reconsideration of the court’s order denying continuance saying, that the proceeding should be continued due to “significant change of circumstances due to newly imposed difficulties directly imposed by COVID-19”.
The Court denied the motion for reconsideration stating itself to be “empathetic with the difficulties the parties and attorneys are now facing with respect to the orderly litigation of their cases. However, the court ruled, there are still many aspects of litigation that can continue remotely and while maintaining social distancing despite the circumstances.”
The Court went on to make it clear that in absence of general court orders addressed to specific areas of practice, there would be no blanket approval of continuance motions based simply on difficulties presented by COVID-19.
Instead litigants would be required to file a motion for extension of time of particular deadlines specifically tailored to the facts and circumstances of the litigation. Other parts of the litigation that could be accomplished would not be stayed or extended.
Extensions of discovery and other deadlines continue to be available for problems specifically caused by the pandemic, but only as the facts and history of any specific case dictate. Parties should generally comply with all time limits or, if applicable, should plead for very specific relief supported by the specific circumstances of the case.
Based on Horning, it appears wise for movants for a continuance not only to factually justify motions for continuance with the specific circumstances of their cases, and to state how they are otherwise dealing with potential delays to litigation posed by COVID-19. Requests generally for delays due to the difficulties posed by the Pandemic without specific application to a specific circumstance of the case will likely be denied.
At Barrett Nonni & Homola, we are dedicated to providing the best legal counsel in the Tallahassee area. If you have suffered a personal injury, please do not hesitate to get in touch with us today!
If you’ve ever seen a news report about a plane crash, you’ve likely heard the term “black box” used to describe the information storing device located in all commercial aircraft. However, most people don’t realize those same information storing devices are also standard features on most commercial big rigs and can play a vital role in the outcome of a litigated trucking accident case. The Tallahassee Truck Accident Lawyers at Barrett Nonni & Homola are uniquely qualified to gather and utilize this data for your case.
The standard name for what is commonly referred to as a “black box” is “electronic control module” (ECM) or “event data recorder” (EDR). These devices store data about the physical properties of a vehicle at the time it is involved in a collision. Most commercial trucks are equipped with an ECM or EDR, and many national or regional carriers also use satellite tracking equipment or trip recorders to monitor their fleets.
What Does an EDR do?
Information that can be stored and downloaded from EDRs in most commercial trucks includes:
- speed history
- excessive RPM
- fuel consumption
- heavy braking
- hours driven
- movement summary
- idle time
- fast acceleration
- driver identification
Currently, federal regulations do not require that trucks have EDRs; however, almost all truck engines today have an ECM that functions as an EDR. An ECM is standard equipment on all diesel fuel injection systems. ECMs allow companies to monitor and analyze trip times, speeds, total idle time and the existence and number of hard stops.
Why is this Data Important in Truck Accident Cases?
“Black box” data is invaluable to an experience truck accident attorney when investigating the cause of a trucking collision and must be obtained at all costs. Many times a client is so badly injured in a trucking collision that he/she either doesn’t remember any details surrounding the collision or is no longer alive to tell his/her side of the story. Unfortunately, without “black box” data the attorney and loved ones are left to rely on the account of eyewitnesses, which oftentimes consists only of the commercial truck driver. Many times the “black box” data can level the playing field and provide its own eyewitness version of events often delivering information which outright refutes the version of events put forth by the commercial driver. Our truck accident attorneys have found that this information is invaluable in the cases of our clients.
Imagine a situation where an individual is rear-ended on the interstate in the middle of the night when there is no one else on the road. Unfortunately, the individual that is rear-ended passes away leaving only the commercial truck driver to narrate the events leading to the crash. The truck driver states he was traveling below the speed limit and came upon the car going at a low rate of speed with no lights activated. He states he attempted to brake but could not stop in time to avoid the collision.
Obviously, just hearing those facts on their face almost anyone would conclude the rear-ended driver was at fault. However, upon receiving the “black box” data an entirely different picture is painted whereby the commercial driver was actually traveling 20 mph over the speed limit and never engaged his brakes prior to the collision. Learning that information completely changes the perception of what happened and lends credence to a version of events not so favorable to the truck driver. It also provides solid evidence for an experienced trucking accident attorney to use in fighting for justice.
Unfortunately, trucking collisions happen daily on the roadways throughout Florida and Georgia and many injured individuals and/or their families end up hiring attorneys who either have no idea the “black box” data exists or, if they do, how to go about obtaining it. Far too often trucking collisions are not thoroughly investigated and viable claims are forgotten because “black box” data is not obtained. That is why it is important that you get in touch with our attorneys. They will work tirelessly to achieve the best results possible for your trucking accident claim in Tallahassee.
Contact A Tallahassee Trucking Accident Lawyer Today
The attorneys at Barrett Nonni & Homola are well versed in the intricacies of trucking cases and will leave no stone unturned if you or a loved one has been injured as a result of a careless truck driver.
The driver that hit me was on the phone! Time after time I hear clients emphatically claim the driver of the vehicle that hit them was talking on or otherwise using a cell phone. Sometimes the client actually sees the other driver on the phone, other times the client simply assumes the other driver was on the phone as they cannot fathom how another driver could possibly slam into the rear of their car at 55 mph without being distracted by a phone. Regardless of why the client believes the other driver was on a phone, he/she always wants to know IF and HOW we can figure it out. The good news is, it is definitely possible to discover whether an at-fault driver was using a phone at the time of a collision. However, the bad news is, it may not be quite as simple as one might expect. That’s why you should get in touch with the Tallahassee Car Accident Lawyers at Barrett Nonni & Homola today so that we can help you with your car accident claim.
How do I Get a Record that the Other Driver was on Their Phone?
Sometimes the investigating officer of a motor vehicle collision will make mention in the Florida Crash Report that the at-fault driver was utilizing and/or looking at his/her phone at the time of the collision. Slam dunk, right? Not so much. Unfortunately, any statements made to an officer by an individual involved in a traffic collision while that officer is investigating the collision is inadmissible in a court proceeding. Additionally, the Florida Crash Report that is generated by the investigating officer is also inadmissible in a court proceeding. I’ve actually had cases where the officer puts in the crash report that the at-fault driver was distracted by his/her phone at the time of the collision and then testify under oath that they were NOT using the phone at the time of the collision. Unfortunately, those statements made to the officer are not admissible in a court proceeding, even in attempting to impeach the at-fault driver. (Sidenote: if my client happens to overhear the at-fault driver tell the investigating officer he/she was distracted by the phone at the time of the collision, my client CAN testify regarding what was overheard).
What’s the Best Way to Determine if Someone was on Their Phone?
The best way to conclusively determine whether an individual was utilizing his/her cell phone at the time of the collision is to subpoena the phone records from that individual’s cell phone service provider. An attorney does not have the power to issue a subpoena until a lawsuit is filed. Unfortunately, there are numerous personal injury attorneys who are not willing to file lawsuits and will suggest accepting the last best pre-suit settlement offer from an insurance company. The attorneys at Barrett Nonni & Homola WILL file lawsuits and will aggressively pursue the acquisition of cell phone records in cases where there is an allegation a phone was involved. As soon as it is determined who the cell phone service provider is for the at-fault driver, an attorney is able to send a non-party subpoena to the cell phone service provider. The subpoena is a court order which requires the service provider produce the documentation requested by the attorney. Of course, attorneys for the at-fault party and sometimes attorneys for the service providers can make this process more difficult. Nonetheless, the records are nearly always secured by our attorneys when they are requested.
What Happens After the Record is Obtained?
Once the records are obtained, they are examined and the at-fault party is questioned in his/her deposition regarding the contents of the records. When attempting to determine whether the at-fault party was using a feature on the phone such as email, internet, or social media, an expert is sometimes required to decipher the information. However, most often the information is easy to understand and the use of an expert is unnecessary.
New studies suggest the use of cell phones while driving is actually more dangerous than driving drunk. As a result, there is a trend among Florida courts to allow for the imposition of punitive damages on drivers who have caused collisions due to cell phone use. If you or a loved one has been involved in a collision and you believe the collision was caused by a driver distracted by a cell phone, do not hesitate to call one of our attorneys today.
Automobile wrecks happen every day in Tallahassee in which the people involved do not sustain any injuries. Despite the fact there are no injuries, these same people find themselves dealing with insurance companies when trying to get repairs done to their damaged vehicles. Oftentimes, the damage to the vehicle is bad enough that the cost to repair that damage would exceed a certain percentage of the value of the car (usually 80%). In this scenario the insurance company is going to determine the vehicle to be a “total loss” and pay the owner of the vehicle the reasonable market value for the vehicle or replace the motor vehicle with a comparable motor vehicle. The Florida statute governing these practices is Fla. Stat. § 626.9743.
Typically, these claims go very smoothly and the insurance company will pay a fair value for the totaled vehicle. However, in some situations insurance companies attempt to pay slightly less than what they should because the vehicle owner is almost never represented by an attorney. This might only be a few hundred dollars but when you multiply that few hundred dollars by the number of claims the insurance companies pay out each year, it doesn’t take long for those hundreds of dollars to balloon into hundreds of millions of dollars. Below I will share with you a few tips to ensure you are receiving a fair value for your vehicle.
How Do I Know if I am Receiving Fair Value for my Vehicle After a Car Accident?
First, you need to understand how the insurance companies come up with the value of the vehicle in the first place. After a collision, the insurance company will task an adjuster to look over the damage on the vehicle and come up with a repair estimate. Once an estimate is made, the insurance company will make a determination as to whether it wants to repair the vehicle or classify the vehicle as a total loss. Like I mentioned earlier, if the cost to repair the vehicle exceeds a percentage of what the vehicle is worth (usually 80%) the vehicle will be determined a “total loss.” After the vehicle is determined to be a “total loss” the insurance company will gather all of the data about the vehicle (make, model, mileage, features, accessories, etc.) and plug that information into a database. That database will search local auto dealerships and attempt to locate vehicles that match the same criteria as the one which is being replaced. Once comparable vehicles are located, the adjuster will then compare the prices and the data between the vehicles adding or subtracting from the value of the vehicle based on these comparisons. For example, if the adjuster finds a vehicle exactly like the one being replaced for $5,000 but it has 40,000 more miles, the adjuster would presumably value the vehicle being replaced higher than $5000. By doing this comparing and contrasting, the adjuster is going to come up with a value at which he/she values the car and will convey that offer to the vehicle owner. The offer will also include the sales tax that would be required to purchase a new vehicle as well.
Once the vehicle owner receives the initial offer from the adjuster, it absolutely should not be blindly accepted. Most people will simply accept the offer without ever looking at the report showing the vehicles it was compared to. One of the best ways to boost the offer on the damaged vehicle is to look through the report and ensure the vehicles it was compared with have substantially the same features and mileage. Using the example about, the vehicle owner certainly would not be likely to accept $5,000 for his damage vehicle when he finds out that the exact same vehicle with 40,000 more miles sells for $5,000. Differences like that can add hundreds if not thousands of dollars to the value.
After looking through the valuation report, the owner should then gather any receipts for improvements made on the vehicle in the last year. If the car had $1,200 worth of tires put on it 3 months prior to the wreck, the adjuster needs to know and the value of the vehicle will be raised. And this could be for anything that was done to the car such as: replacing the transmission, new paint job, new stereo system, aftermarket chrome rims, etc.) Any proof that can be provided to the adjuster showing value was added to the vehicle will increase the value of the offer. Many times adjusters won’t ask for this information knowing that if they did they would be paying out more money so they won’t mention anything until the owner brings it up.
Lastly, don’t forget that if the car is not operational after the wreck, you are entitled to the lost use of your vehicle during the entire time from the date of the wreck up until you settle the property damage claim with the insurance company. Again, nearly no adjuster is going to bring this up unless it is mentioned. However, the lost use amount is not valid if the insurance company provide you with a rental car during the claims process.
Contact a Tallahassee Car Accident Lawyer Today
We receive several phone calls every month regarding the fair valuation of a “total loss” vehicle. The techniques spelled out above are exactly what I tell every client. I would say in a vast majority of cases, if you simply look through the valuation report, provide receipts for recent additions/maintenance done to the vehicle and demand lost use damages, you will increase the value of your “total loss” claim. If you or a loved one are in a situation where you feel you are not being adequately compensated for a vehicle deemed a “total loss” call the attorneys at Barrett Nonni & Homola for a free consultation.
Just when it seemed as though things couldn’t get any worse, many small business owners in Tallahassee and across the Nation are finding out that insurance companies are refusing to provide coverage for this economic slowdown even though the insurance policies (i.e., contracts) that they wrote say that they’re supposed to. Many small business owners have been paying a lot of money every month in insurance premiums for business interruption insurance policies, which are sometimes also called business continuity insurance policies. Regardless of which name is used, these policies provide coverage to businesses if they’re forced to shut down due to a natural disaster like a hurricane, tornado, fire, or a pandemic. These policies are supposed to replace the business’ income during the shutdown by covering their expenses, such as payroll, rent, loan payments, etc. That way the business will have enough money to pay all of its monthly bills during the shutdown so that when the time comes to open back up again the business is actually able to resume operations. The entire point of these policies, and the entire reason why businesses have been paying so much money every month to have this coverage, is to prevent bankruptcy.
Don’t Let Insurance Companies Take Advantage of You
Many businesses have what are known as “all risk” policies or “all coverage” policies, which means that the policies are required to cover losses arising from any fortuitous cause except those that are specifically excluded. And, many of these polices do not contain any exclusions that come even close to excluding a pandemic caused by a virus. So, for these business owners, there should be no question that they’re covered right now. But, when these business owners submit claims, the insurance companies are responding by sending out denial letters and essentially saying, Oh we didn’t mean that…that’s not what the policy language really means…we’re going to fight this.
Other business owners have all risk policies containing exclusions which say they don’t provide coverage for losses caused by bacteria. But, as many of us already know or have recently learned, a virus is very different than bacteria. And, these exclusions are very clear. The policy language doesn’t say “bacteria or virus”; it just says “bacteria.” So, there should also be no question that these business owners are covered right now too. But, as I type this, insurance companies are relying on this exclusion to deny claims.
And, insurance companies are denying claims under both types of policies despite the fact that the government told these small businesses that they must shut down because this is a public health crisis, which strengthens the argument that the insurance companies are required to provide coverage right now. Unfortunately, this behavior by insurance companies is not new; it’s the same old game that they play all the time, like with claims stemming from the BP Oil Spill and Hurricane Michael.
How We Can Help You Win Against the Insurance Company
During the lawsuits that will ensue from these claim denials, we expect to see the defense attorneys attempt to defend the insurance companies’ position by arguing some ridiculous reinterpretations of the policy language. Most of these lawsuits will likely end up in federal court due to diversity jurisdiction where a judge, not a jury, will decide whether or not the insurance companies are required to provide the coverage that they promised to provide years ago when they entered into the contract with the small business owner. So, we also expect to see some judges who will always call it fairly and other judges who will always side with insurance companies and big business.
Concerningly, talking points are currently being circulated in the insurance community which some insurance agents are using to discourage people from making claims. But, if you’re a small business owner who is shut down right now because of COVID-19 and you have one of these polices, you cannot give up, because that’s exactly what the insurance companies want you to do. Instead, submit your claim, wait to receive the denial letter from your insurance company, and then send us a copy of your entire policy and a copy of the denial letter and we’ll analyze your specific situation and provide you with our opinion about the options that are available to you free of charge. This is a unique situation, so if you’re going to hire an attorney, it’s extremely important that you find one who has specific experience handling business interruption insurance claims. If you need help with a claim against your insurance company, contact the Tallahassee Insurance Lawyers today at Barret Nonni & Homola for a free consultation about your case.