Miami Beach Cop Crashes ATV: Miami Police Causing Personal Injuries - What is Sovereign Immunity and When Can the Government Be Sued for Injury or Death?

Over this past Fourth of July weekend, a veteran Miami Beach cop named Derick Kuilan who was on the job (on duty) left a local hotel bar with a young woman, giving her a ride on the beach on his ATV.

They sped along, this cop and his lady friend, and they were going fast. It was dark. The ATV's lights were off.

The ATV was going so fast, in fact, that Luis Almonte and his girlfriend Kitzie Nicantor couldn't get out of the ATV's way in time, and both were run over by the police officer (again, who was ON DUTY) and seriously injured. The cop's friend, Adelee Sharie Martin, was reported thrown from the ATV but not hurt very badly.

If This Were Not a Cop....

If this were not a police officer, then this would be a straight-up personal injury law example: an ATV crash where the duty of the driver to be safe as he operated his all-terrain vehicle would be examined, to see if the driver breached that duty and caused the injuries sustained by the victim. If negligence was found, then the driver (and his insurance coverage) would have to cover the damages sustained by those who had been hurt.

When a Government Employee Is Involved in a Crash, It's a Different Situation

Things are different in a personal injury situation where a government employee is involved as the person operating the vehicle that crashes. Whether it is a car, an ATV, a motorcycle, or an SUV, if that government vehicle is involved then something called "sovereign immunity" may apply.

Or not. It's been reported in the Miami Beach ATV crash that officer Kuilan was seen fleeing the scene of the accident after it happened -- a key fact -- and that tests of his BAC levels (blood alcohol content) are being done by Internal Affairs, as he is on administrative leave from his job.

Witnesses say that the accident happened at around five o'clock on the morning of Sunday, July 3, 2011, and that after the crash, Kuilan asked onlookers to help him out and not say anything before he ran away.

What is Sovereign Immunity?

The idea of "sovereign immunity" has been a legal concept since ancient times, where it was more commonly known as "the king can do no wrong." Today, it is a legal concept, or "doctrine," that bars anyone from suing a governmental agency (like a police department) unless there are laws on the books that allow that lawsuit to be filed.

In other words, if the State of Florida does not have a law that lets an injured person sue the Miami Beach Police Department -- or any other state agency, even the Governor himself -- then that lawsuit cannot be filed.

Why not? There are several reasons for sovereign immunity, including protecting taxpayer money. If the accident happened in the course of a proper governmental action, then in the balance, it may be seen as better to protect the taxpayers as a whole than allow lawsuits for damages against a state entity.

For more details, check out this summary of sovereign immunity prepared by the Florida Senate.

Florida Statute 768.28 - Limited Ability to Sue Florida Government for Personal Injury

The Florida Legislature has passed a law that allows injured victims in Florida to sue for damages, waiving sovereign immunity in some situations. Of course, this law limits who can be sued, how much attorneys' fees can be awarded, etc. - but Florida does have laws on the books waiving sovereign immunity in some situations.

For the full text of Florida Statute 768.28, go here.

One of the Keys to Sovereign Immunity is Scope of Employment

One of the first questions to ask when a government agency, like a police department, is involved in a personal injury claim, is whether or not sovereign immunity bars the suit, and one of the key issues in that analysis is this: was the government employee acting in his scope of employment at the time of the accident?

Was a Miami Beach police officer in the scope of his employment, allegedly drinking at a hotel bar on a holiday weekend before taking a female passenger on a fast ATV ride in the dark, without headlights at five in the morning?

By Bryant Esquenazi on July 5, 2011 1:16 PM

What is PIP Insurance Coverage - and How Insurance Companies Just Lost Their Latest Try at Getting Florida to Gut PIP Coverage

Personal Injury Protection, or "PIP" coverage, is something offered to Floridians as part of their automobile insurance policy. Right now, under Florida law, every car owner and driver must have at least $10,000 PIP coverage.

If you are in a car accident in Florida, this PIP coverage kicks in, never asking who's to blame. The $10,000 coverage is there, ready to help. Since the insurance company isn't allowed to assess blame here, Florida is called a "no fault" state.

PIP will cover up to 80% of your medical bills and up to 60% of your lost wages - up to that $10,000 cap. No questions asked.

Insurance companies are against PIP coverage because they are arguing that too many people take advantage of it, setting up fake insurance claims just to get the money. We've discussed this before; now, however, Tampa's Fox 13 Investigative Reporter has just published its own expose on PIP coverage fraud, which may help drive those pushing the legislature for change in the future.

Florida is No. 1 in the USA for Fraud PIP Claims

According to Tampa Bay reporter Doug Smith, Florida is actually number 1 in the United States for these kinds of fraud -- and Tampa is tops within the state for filing fake PIP claims.

According to the Fox story, many of these fake PIP claims are professional jobs where there are staged wrecks and clinics are set up to handle the filings. The crashes are set up to have lots of folk involved, so that $10,000 cap can be milked. Eight people can mean close to $80,000 from one scam. The news story goes on to interview those in the know, including police detectives who suggest that these big crash scams are orchestrated by organized crime.

Florida Legislature Nixes Reform - No Changes to PIP Laws for Now

In January, we discussed PIP reform proposals that were being talked about up in the state capital and the efforts of insurance carriers to push reforms through, from bill to law. They've failed.

The insurance industry had gone so far as to build up proposed comprehensive reforms to Florida's PIP laws, creating one big comprehensive personal insurance coverage reform bill.

Around ten days ago, that all fizzled out when the Florida House committee hearing the proposal voted against it. Specifically, HB967/HB1411 - the biggest attempt at changing PIP laws here in Florida in the past 4 years - died as it was voted down by the Florida House Subcommittee on Health Care and Human Services.

Read the dead bill's language here -- and see for yourself that what didn't succeed into turning into law this year was not only an attempt at altering your insurance coverage (instead of boosting regulations to stop criminals via criminal investigation, etc.) but an attempt to:

1. give the insurance companies the right to cap the charges they would cover under PIP for medical services;

2. limit the amount of money that attorneys could charge for their work regarding these crashes; and

3. granting the insurance company even more time (read that delay) in investigating claims before they pay.

It's one thing to fight crime. It's another thing to hurt all Floridians who unfortunately are involved in an accident. Sounds like lots of Florida accident victims may have just dodged a bullet.

By Bryant Esquenazi on May 10, 2011 3:41 PM

Charlie Sheen Isn't Stupid: An Example of How Lawsuits Are Built

Tonight, Charlie Sheen will appear on ABC for a lengthy interview on its 20-20 show - though if you've been following the news, you've probably already heard Mr. Sheen's loud and long protests against the cancellation of his CBS comedy, Two and a Half Men.

If you think that Charlie Sheen is a nut for roaming around and pontificating to Piers Morgan (CNN), Howard Stern, the crew at Good Morning America, TMZ.com, - well, the list goes on and on (the Washington Post calls this his "media storm") -- then you'd be wrong. Wrong.

Because while some may think that Sheen is crazy, he may well be crazy like a fox. Why? From a legal perspective, Charlie Sheen is doing a fine job of getting positioned for a big, fat lawsuit where millions (if not billions) will be on the line.

Lawsuits are Strategically Built, They Don't Spring Up Fully Formed

All lawsuits arise from a formal pleading (the petition or complaint) being filed down at the courthouse with the appropriate clerk, the original being placed in the public record and then copies being given to those who have been sued through a procedure called "service of process." However, that lawsuit didn't just start that day or that week.

Lawsuits are prepared and planned and built for weeks or months before that filing occurs. Facts are gathered, legal research is done. Evidence is made ready through the gathering of documents and the accumulation of witness statements.

You get ready for the fight in an aggressive, thorough manner. The claims that appear in that first filing are supported by lots of hard work and shrewd planning.

All plaintiffs work with their attorneys in this process. They gather evidence. They position themselves for the fight. They are an integral part of the team. And, if they're wise, they work with the potential defendants in an attempt to negotiate a resolution of the controversy before the legal war in the courtroom begins.

Which is exactly what Charlie Sheen is doing. Consider these things that we know and what they may well mean:

1. Charlie Sheen is represented by the Los Angeles law firm of Lavely & Singer - and Radar Online has published a letter that Sheen's lawyers have sent to Warner Brothers and CBS warning that Sheen has legal claims - that Sheen considers himself to be legally wronged.

Translate this to: Sheen's lawyers have given legal notice that a lawsuit - based on contractual damages as well as personal injury - may be forthcoming. Sheen's pondering and perhaps planning litigation - here's his formal notice to the parties he's considering suing. He's letting them know he has legal representation and they are letting the potential defendants know what these legal claims are.

2. Charlie Sheen is doing things now to counter any defense that might be asserted by these defendants. He's doing drug tests in front of the media - blood, urine - and coming out clean.

Translate this to: evidence that Steen is not operating under the influence through lab tests taken before witnesses who can testify that the tests were not fixed. Evidence here, not some stunt.

3. Charlie Sheen is ready to work. Sheen has repeatedly announced he's ready to continue with his TV show duties - even going so far as telling anyone who will listen that he would be showing up for work.

Translate this to: Sheen is letting everyone knows he's ready to continue with his contractual duties. He's not breaching here.

4. Charlie Sheen is actively seeking other projects. Movies, talk shows, etc. These don't seem to be panning out according to media reports.

Translate this to: Sheen is investigating whether or not he has been harmed by the things that have been said about him - has he been professionally injured, has he been legally defamed?

Say what you want about Charlie Sheen. Hate his show, or like it. Disapprove of his lifestyle or revere him as the new Hugh Hefner -- bottom line, Sheen is exemplifying an involved plaintiff preparing for a legal war and there are lessons to learn here.

By Bryant Esquenazi on March 1, 2011 1:32 PM

National Margarita Day in Miami: Free Drinks, Bar Specials - and Lawsuits Waiting to Happen.

National Margarita Day is today, Miami -- February 22, 2011 - though who knows when it will hit next year, because part of the fun of National Margarita Day is it just pops up on a random winter day each year. And, this year, it's popped up today.

The Broward Palm Beach New Times Blog reports that Rocco's Tacos is offering free margaritas in celebration. Well, one free margarita per person, but who would complain?

The Miami New Times gives details on what Jimmy Buffett is planning for National Margarita Day at his chain of Margaritaville restaurants.

The Food Channel has tons of margarita recipes for those of you who choose to mix your own concoctions. And, it reports that Miami has the honor of being one of the nation's "best major metro cities" for margaritas, citing the Cheers On-Premise Handbook 2008, whatever that is.

Google has searches for "National Margarita Day" as being "volcanic" as word of mouth passes the news about today being the day to celebrate America's favorite festive beverage.

Here in Miami, we're always happy to have fun and National Margarita Day sounds like a great party theme. Even if you don't like Jimmy Buffett.

However, drinking alcohol means that people risk drinking too much. When that happens, serious injuries and tragic deaths occur. Drunk driving, for example, isn't just a crime in Florida -- it's the basis for personal injury and wrongful death lawsuits against the driver - and if the driver is a minor, then his/her parents might be found legally responsible for money damages, too.

In personal injury cases where intoxication is proven, the Florida Legislature has passed a law where juries are not limited in the amount of punitive damages they can assess (read that law here, Florida Statute 768.736).

Bars, hotels, and restaurants in Miami and elsewhere are also legally responsible for monitoring their patrons because they can be held accountable for the injuries that result for drunken fun gone bad - although the law is specific on what these duties are.

Florida Statute 768.125 provides:

A person who sells or furnishes alcoholic beverages to a person of lawful drinking age shall not thereby become liable for injury or damage caused by or resulting from the intoxication of such person, except that a person who willfully and unlawfully sells or furnishes alcoholic beverages to a person who is not of lawful drinking age or who knowingly serves a person habitually addicted to the use of any or all alcoholic beverages may become liable for injury or damage caused by or resulting from the intoxication of such minor or person.

Premises liability and "dram shop laws" in Florida therefore make the seller legally accountable for monetary damages to those injured or killed from drunken driving but not other drunking activity that may cause injury (falling, overdose, etc.).

Anyone who sells or serves margaritas, or other alcoholic beverages, will be liable for a drunk driver if (1) the driver is 21 years old or less or (2) the driver was someone that they personally knew had a drinking problem.

So, Happy Margarita Day, Miami!! Have fun today - just be careful out there, and if the bartender stops serving you, don't get mad. Get a cab.

By Bryant Esquenazi on February 22, 2011 2:05 PM

Distracted Driving Lawsuits: Who Can You Sue for Loved One's Injury or Death in Distracted Driving Car Crash - Is There a Doctor's Duty to Warn?

Distracted driving causes car accidents - crashes where people are seriously injured or killed. Deaths due to distracted driving are still being studied by academics and governmental agencies. All we know for sure is that texting or talking on the phone while driving is causing car accidents and crashes where people are dying - or suffering severe harm.

The American Journal of Public Health reports that "[d]istracted driving is a growing public safety hazard. Specifically, the dramatic rise in texting volume since 2005 [fatalities from distracted driving increased 28% from 2005 - 2008] appeared to be contributing to an alarming rise in distracted driving fatalities."

Laws are being enacted across the country to outlaw texting while driving and (better) using a phone at all while driving. According to the Department of Transportation, 30 states have outlawed texting for all drivers and another 8 states have outlawed drivers from using handheld cell phones while driving - period. (Most of these laws were passed in 2010.)

In Florida, Preemption Law prohibits localities from enacting distracted driving bans.

It's a celebrity issue. Oprah has a campaign against Distracted Driving (you've heard it: the No Phone Zone). Meanwhile, thumb (or surf) through any tabloid and see Kim Kardashian with her phone; Lindsey Lohan with her phone; Justin B. or Justin T. with his phone.

It's cool to text and talk.

It's convenient to do it while driving. And, face it: even if it's illegal, lots of folks are going to be doing it and it is very difficult for law enforcement to stop. Think about it -- it is not that easy to see what someone is doing as they drive along a busy street or freeway. That will be a true eagle eye that can spot the texter and then successfully prove in court that they are guilty of Distracted Driving. (Although the laws are helping some defendants by providing an "illegal acts" defense in any subsequent lawsuit.)

Which makes the recent development so interesting. Doctors have thrown themselves into this fracas.

The New England Journal of Medicine published an article on distracted driving this summer that included an opinion that doctors have a duty to warn their patients about the dangers of distracted driving. That's right: when Kim Kardashian goes to see her doctor, his peers are suggesting that he explain to Kim that driving while using the phone is very, very dangerous.

After this, one doctor-blogger responded to this NEJM report not with criticism that distracted driving might not be within the doctor's responsibilities but instead to point to a Virginia Tech study that suggests that distracted driving might not be all that bad (oh, please) and that heck, he rides his bike anyway. Wow.

Do Doctors Have a Duty to Warn About the Dangers of Distracted Driving?

Maybe so. Doctors are arguably voluntarily taking on the duty -- and therefore, possibly exposing themselves to the liability. Doctors are including distracted driving as a behavior that may lead to injury and therefore, something against which they have a duty to warn their patients.

DOCTORS are arguably defining the duty in of all places, the New England Journal of Medicine and based on the blogging physician, it's not being challenged within the profession itself. It's not legislatures or plaintiffs' lawyers trying to pin it on them here.

By Bryant Esquenazi on October 14, 2010 4:57 PM

Kim Kardashian and Mel Gibson Car Crashes: What We Can All Learn From Mel and Kim's Recent Fender Benders

Kim Kardashian is sorta one of the Miami locals these days, although she was shopping in Beverly Hills when her Bentley convertible got an estimated $25,000 in damages. It's being reported that Kim zipped over a speed bump too fast, crushing the front bumper of the car.

In the same news reports, we're also learning that Mel Gibson banged up the wheel well of his Mazarati on Sunday. TMZ has the photos, of course. Seems Mel had a slight car crash while driving on a Malibu highway on a Sunday afternoon.

Now, sure. These are two famous people - big time celebrities - who bashed their very expensive cars all by themselves while driving around very beautiful havens for their fellow celebrities. Mel Gibson and Kim Kardashian, all alone, did some minor damage to some very expensive wheels. So what?

Well, from a lawyer's perspective, Mel Gibson and Kim Kardashian have given us some great examples of things to remember when any one of us gets into a minor traffic mishap.

Here's just a few:

Get a Police Report. Mel Gibson crashed his Mazarati on a public road, but Kim crimped her Bentley's bumper in a private parking lot. Public road makes a difference here. Might be best to call the police, make a report of what's happened -- even if you think your fender bender isn't a very big deal. (Which Mel did. Good for Mel.) Your state law may even require you to do so.

Photos at the scene are important. Kim Kardashian and Mel Gibson can rely on the paparazzi to document their car damage and the location, weather, time of day, etc. of the incidents. Assuming you don't have celebrity gossip sites following you around, then you better take your own pics - right there, just as it happened. May be a big help in an insurance claim or a personal injury suit for a defective product down the road.

Were there witnesses? No matter how minor your fender bender may seem at the time, if you saw people watching it happen, then take the time to get their names. And addresses. And phone numbers (work is better than home, best to get both).

Why? Maybe this damage to your car (and maybe to you, too) was just one of those things. Maybe not. You won't know at the scene if there was a product failure -- think the Toyota sudden acceleration as a hidden product failure -- and having the events documented (with police reports, pix, and witnesses) may make the difference between victory and defeat in any product defect fight down the road - as well as any fight with the insurance company over your damage claim.

Follow Kim Kardashian on Twitter at @kimkardashian

By Bryant Esquenazi on August 17, 2010 11:11 AM