Florida Second District Court of Appeal

Toral Garcia and Franz, P.A. Secure Recent Statewide Victory for TBI Advocacy

For years, parents of minor children who became legally incapacitated by traumatic brain injuries were able to retain immediate and vigorous representation through experienced counsel. Often, the ability to match the insurance companies, both investigating and gathering evidence early, is a key factor in obtaining a just result for the child.

On January 15, 2010, Toral Garcia and Franz, P.A., advocated and won these very same rights for incompetent and incapacitated adults and others who become incapacitated as a result of a Traumatic Brain Injury. In In re Guardianship of Deily v. Geico Ins. Co., No. 2D08-2965, 2010 WL143457 (Fla. 2d DCA Jan. 15, 2010), the Second District Court of Appeal in Lakeland, Florida, ruled: “While Phillips concerned a minor, we believe it is equally applicable to an incompetent or incapacitated adult.”

By expanding Phillips to include incompetent and incapacitated adults, the families and friends of these adults can, for the first time, immediately retain a law firm to advocate on behalf of said adults. This decision correlates to a new right to meaningful access to the courts.

In this case, Toral Garcia and Franz, P.A. recovered the full policy limits on two insurance policies which afforded coverage. The trial court wrongly determined that Toral Garcia and Franz, P.A., which secured the settlements, did not have a valid representation agreement with the mother of the incapacitated adult. The trial court thus negated those settlements and the work done by Toral Garcia and Franz, P.A. and sent a message to lawyers that they could not represent incapacitated persons until a guardian is appointed.

However, the Second District Court of Appeal disagreed and reversed the trial court, paving the way for parents and next friends to hire an attorney on behalf of incapacitated adults.

Toral Garcia and Franz, P.A. is pleased to announce the expansion of rights it was able to secure for incapacitated and/or incompetent adults, which will be valuable tools in advocating on their behalf in the future.