January 27, 2012

The owners of the Costa Concordia ship, which recently capsized off the Italian coast , have offered each passanger $14,000 to cover damages relating to lost luggage, miscellanious expenses and psychological trauma experienced in the accident. They have also offered to reimburse all pasangers for medical bills and travel expenses. The offer is designed to compensate passangers who did not suffer serious injury or lose a family member.

Meanwhile, a class action lawsuit is being filed in Miami on behalf to the passangers, seeking at least $160,000 per passanger. A clsass action lawsuit is designed to represent a large group of people who have similar claims and it would be impractical to file seperate lawsuits. If a settlement is reached, the court must approve the amount the class members receive. Sometimes it's an equal amount to each, or it may be based on a ranking of damages sustained by the members of the class.

The court must first find the criteria is met for a class action lawsuit. A judge may rule the requirements are not met and refuse to certify the class action suit. If the class action is certified, then each potential member ( in this case each passanger ) must be notified and given the chance to either stay in the class or opt out and pursue their own claim. If they stay in the class, they are bound by the ternms of the settlement, wheter they like it or not. If they opt out, they are not bound by the class settlement, but they must hire their own lawyer and incur those expenses.

Anyone who suffered a serious injury or lost a family member will almost certainly opt out of the class action suit and pursue their seperate claims. For those fortunate passangers who escaped unharmed, they will have to deciede whether to accept the ship's offer now or join the class action suit and wait for the results of that case. That could take several years and the outcome is unknown. If they accept the ship's offer, a release will be required to prevent them from additional recovery from future lawsuits. So the decision to be made is whether to accept a sure and known amount now, or hold out and hope they get more as a member of the class action suit.

January 13, 2012

The recent and tragic accident involving the Costa Concordia has spotlighted the issue of cruise ship safety and the rights of passangers to seek recovery for injuries or death. Most passangers have no idea that their legal rights are restricted for injuries they sustain while on a cruise ship that makes port in the United States.  They should read the back of their cruise tickets in the event of an injury caused by the ship or it's employees.

Federal law allows the cruise ship operator to limit the time to file a notice of injury/claim to 6 months and the time to file a lawsuit to no longer than a year from the date of accident. Failure to file both the notice of claim and the actual lawsuit in that time period will, in most cases, act as a total bar to the passanger seeking recovery for their injuries.

Also, the cruise ship operator can be sued only in the jurisdiction that they select. Many cruise lines, like Carnival, require that any lawsuit against them be filed in a court in Miami. Other cruise lines have selected other jurisdictions, such as Holland, which requires lawsuits be filed in Seattle. So if a passanger from Minnesota takes a Carnival cruise out of the Port of Miami, that passanger must file any lawsuit for injuries sustained on the cruise in a Miami court. That can cause a financial hardship for the passanger to travel from Minnesota to Miami on the several occasions required by the various stages of litigation. It also requires the passanger to hire an attorney who is licensed to practice in the courts in Miami.

If you have any questions or comments about this article, contact Robert V. Greene, Esq.,
239 573 7400.

January 10, 2012

David Belniak pled guilty to DUI/Manslaughter for causing the death of 3 people in a tragic accident near Tampa on Christmas day, 2007. He has recently made news by filing a lawsuit against the driver of the automobile in which the 3 people died, claiming that the driver, Ray McWilliams was also negligent in causing the accident. The evidence from the data recorders in each vehicle showed Beluiak's vehicle travelling 70 mph at impact and the McWilliams vehicle to be stationary at impact. At least 6 witnesses testified that Belniak made no attempt to slow down or otherwise avoid the rear end collision with the other vehicle. Belniak now seeks a monetary recovery for his injuries and mental anguish , despite entering a plea and receiving a 12 year jail sentence for the accident.

In Florida a jury is often asked to weigh the comparative negligence of each party and assign a percentage of fault to each party. However, in Florida, there is a legal presumption that the person who strikes another vehicle from the rear is totally at fault for the accident. That driver has the burden of proving, by substanial and reasonable evidence, that the driver of the vehicle which was rear ended was also in some manner negligent in causing the accident. Short of that proof, the court will rule that the rear vehicle was the sole cause of the accident and will lose on the issue of liability. That issue can be resolved by summary judgement, meaning the Judge can dismiss the case before a trial occurs.

So in the Belniak case, there is a definite possibility that the Judge can dismiss this case well before trial, unless Belniak can produce evidence that McWilliams was also negligent. It has to be actual evidence, based in fact, not just someone's opinion or their unsupported version of the accident.

If you have any questions or comments about this article, contact Robert V. Greene, Esq.,
239 573 7400.