Some Creative Lawyering to Find the Deep Pocket

By: Adam L. Bantner, II

A well-honed skill of any successful plaintiff’s attorney is the ability to find the money, i.e., to sue the party that has the greatest ability to get your client the greatest recovery for his or her injuries. In the typical case, it is the insurance company as most individuals simply aren’t worth that much (financially speaking, of course). The median household income of an American household in 2016 was just $11,100.

Sometimes, when damages are great, insurance is relatively low, and the at-fault driver is broke, an attorney will need to get creative to find the money. A 2018 case out of Palm Beach County illustrates this need.

Seminole Lakes Homeowners’ Association, Inc. v. Esnard

Seminole Lakes is not unlike many communities in Hillsborough County like FishHawk, Riverhills, Buckhorn, etc. It’s a deed restricted community that disallowed vehicles from parking anywhere other than the owner’s driveway or garage. However, since there was a shortage of available parking, it decided to allow owners to park on the street despite a provision of Royal Palm Beach Code that prohibit any parking that impedes the flow of traffic.

The Esnards were travelling to their home one evening and came upon a section of the roadway where, because of vehicles being parked on both sides of the road, only one vehicle could pass through at any given time. While the Esnards were waiting for a vehicle to clear this section so that they may continue on their way home, they were struck in the rear by another driver, Upshur.

While Upshur was clearly negligent by causing the accident, one can only assume that he lacked sufficient insurance or resources to fully compensate the Esnards for the injuries that they suffered from the accident. As such, the Esnards’ attorney decided to sue Seminole Lakes Homeowners’ Association as well under a theory that it was negligent and proximately caused the Esnards’ damages by permitting homeowners and their guests to park on both sides of the community’s streets contrary to its governing documents. They trial judge allowed the case to proceed under this theory and the jury came back in favor of the Esnards finding Upshur 70% at fault and Seminole Lakes 30% at fault. They found the money!

Appellate Court Reverses Trial Court

However, this victory would be short-lived as the Fourth DCA ruled that a directed verdict should have been entered in favor of Seminole Lakes.
“While the vehicles parked on the side of the street caused traffic to slow or even stop, it cannot be said that this was a proximate cause of the Esnards’ damages. It is within common experience while driving on the streets of Florida to encounter traffic that is slowed or stopped for any number of reasons. The law requires every driver to maintain a safe distance from the traffic in front of them to avoid rear-end collisions…In light of all of the evidence, including the lack of any prior incidents of this nature, and the general conditions of this residential neighborhood, we hold that Upshur’s negligence was not reasonably foreseeable by Seminole Lakes, and the failure to enforce its parking rules was not the proximate cause of the Esnards’ injuries.”

As a trial attorney, you have to admire the willingness to advance such a novel legal theory in hopes of getting their clients the best recovery possible.

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