$______ VERDICT - PREMISES LIABILITY - FALL DOWN - PLAINTIFF SLIPS AND FALLS ON WATER LEAKING FROM ICE MACHINE ON DEFENDANTS' PREMISES - FRACTURED SUBTALAR JOINT - CONSERVATIVE TREATMENT - CLAIM FOR POTENTIAL FUTURE FUSION SURGERY - DEFENDANT MOVES FOR NEW TRIAL ON LIABILITY AND DAMAGES.

• Pages: 5-7

$1,500,000 GROSS VERDICT – INSURANCE OBLIGATION – PLAINTIFF STRIKES

BARRIER – SECOND IMPACT BY TORTFEASOR – UNDERINSURED MOTORIST CLAIM –

MULTIPLE FRACTURES AND LACERATIONS – 20% COMPARATIVE NEGLIGENCE.

Palm Beach County, FL

In this action for motor vehicle negligence, the

plaintiff’s car slid on a wet road surface and

collided with a highway barrier. While it was

stopped, a second vehicle, driven by the

tortfeasor, approached and struck it in the

passenger side. The tortfeasor settled the

plaintiff’s claims prior to trial and the case

proceeded against the defendant insurance

company as an underinsured motorist claim. The

defendant maintained that the plaintiff’s injuries

were caused by the first collision with the highway

barrier and that the first collision was caused

entirely by the plaintiff’s own negligence.

The collisions occurred on July 3, 2018 at approximately

1:00 a.m., as the plaintiff was driving a 2015 Mercedes

sedan northbound on I-95 south of Okeechobee Boule-

vard in Palm Beach County, Florida. It was raining and

the plaintiff’s vehicle apparently hydroplaned on the wet

road, spun and struck a barrier. The plaintiff’s vehicle

came to rest in a perpendicular position on the highway

and was disabled and without lights. Sometime thereaf-

ter, the tortfeasor approached northbound on I-95 and

struck the passenger side of the plaintiff’s vehicle while

she was still inside.

The plaintiff was transported to the hospital and diag-

nosed with multiple fractures and lacerations including

an open fracture of left ankle fracture, multiple rib frac-

tures and orbital fractures. The plaintiff asserted that all of

her injuries occurred during the second accident with

the tortfeasor. The plaintiff argued that the tortfeasor was

traveling too fast for the conditions at the time of the ac-

cident, was negligently using his cruise control and had

a clear line of sight to avoid the collision.

The defense argued that the first impact was significant,

caused deployment of the plaintiff’s airbag and resulted

in her serious injuries. According to the defense, the first

impact (and the plaintiff’s injuries) resulted entirely from

the plaintiff’s negligence in driving at an excessive

speed and losing control of her vehicle.

The jury was instructed on the “indivisible injury rule”, that

is - if it could not separate some or all of the plaintiff’s

damages as being caused by the first or second im-

pact, then it must award the plaintiff any damages that

it could not separate as if they were all caused by the

tortfeasor.

The jury found the tortfeasor 80% negligent and the

plaintiff 20% comparatively negligent. The plaintiff was

awarded $1,500,000 in gross damages. Final judgment

was entered in the amount of $500,000, representing

the applicable UM/UIM policy limit. The plaintiff’s motion

for leave to file an amended complaint to assert a bad

faith claim against the defendant was granted. The de-

fendant has filed an appeal and a notice to move the

bad faith claim to federal court.

REFERENCE

Plaintiff’s life care expert: Craig Lichtblau from North

Palm Beach, FL. Plaintiff’s orthopedic surgery expert:

Bradley Lamm, M.D. from West Palm Beach, FL.

Plaintiff’s reconstruction/biomechanical expert:

Farhab Booeshaghi from Wellington, FL.

Surovek vs. Standard Fire Insurance Company. Case no.

50-2019-CA-005032-XXXXMB; Judge James Nutt, 10-19-

21.

Attorneys for plaintiff: Brian R. Denney, Jack P. Hill

and Boris L. Zhadinovsky of Searcy, Denney, Scarola,

Barnhart & Shipley, PA, in West Palm Beach, FL.

COMMENTARY

One of main challenges for plaintiff’s counsel, in trying this

underinsured motorist case, was to causally relate the plaintiff’s se-

rious injuries to the second, rather than first, collision. In this re-

gard, the plaintiff was able to offer credible testimony indicating

that the forces involved in the second accident (caused by the tort-

feasor) were significantly more severe than the first slide into the

highway barrier.

In addition, it was shown that the second collision (caused by tort-

feasor) lacked the safety features, such as seatbelt and airbags,

which were available during the first impact. Thus, the causation

challenge was met by the plaintiff and the jury returned a liability

split of 80% against the tortfeasor with 20% comparative negli-

gence with a sizeable $1,500,000 gross damage award.

$600,000 VERDICT – PREMISES LIABILITY – FALL DOWN – PLAINTIFF SLIPS AND FALLS

ON WATER LEAKING FROM ICE MACHINE ON DEFENDANTS’ PREMISES – FRACTURED

SUBTALAR JOINT – CONSERVATIVE TREATMENT – CLAIM FOR POTENTIAL FUTURE

FUSION SURGERY – DEFENDANT MOVES FOR NEW TRIAL ON LIABILITY AND

DAMAGES.

Broward County, FL

In this premises liability case, the plaintiff asserted

that he fell and sustained injury due to a

hazardous condition at the defendants’ premises.

The defendants were the county longshoremen’s

association doing business as the local branch of

the international longshoremen’s association who

owned and operated the building where the

subject incident occurred. The defendant denied

knowledge of a hazard and argued that there was

no evidence that the ice machine was in fact

leaking on the day of the purported incident.

FEATURED CASES 5

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