May 25, 2015

"Independent Contractors" Not Independent Contractors Under Federal Motor Carrier Safety Act (FMCSA)

P1010046.JPGUnder common law, principals are generally not liable for the negligent acts of independent contractors. Interstate shipping companies took advantage of this standard to avoid liability for accidents caused by the owners of rigs who contracted to transport their goods. The practice allowed carriers to keep from having to purchase liability insurance. Given the volume of interstate traffic and the risk of catastrophic injury resulting from big rig crashes, the premium savings were tremendous.

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May 9, 2015

Florida Personal Injury Law: Reasonable Person Standard Established by Statutes, Codes, Industry Standards, and Policies & Procedures

scales of justice.jpgPersonal injury plaintiffs bear the burden of proving the defendant was negligent. See Florida Standard Jury Instruction 415.11 - Civil Cases. Negligence is determined by measuring the defendant's conduct against the behavior of a "reasonable person" under similar circumstances. In Florida, the burden requires proof by the greater weight of the evidence. Standard Jury Instruction 401.3 - Civil Cases.

The reasonable person standard, also known as the standard of care, can be established by statutes, ordinances, codes, rules, industry standards, and a company's own policies & procedures. The violation of a statute, ordinance, code, or rule may constitute negligence per se; violation of industry standards and policies & procedures cannot. When the trial judge decides that a violation is negligence per se, the jury will be instructed to determine if the defendant violated the statute and whether such violation was a legal cause of the injury or damages complained of. deJesus v. Seaboard Coast Line Railroad Company, 281 So.2d 198 (Fla. 1973).

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May 6, 2015

Florida Premises Liability Law: Broken Sidewalk Trip & Fall Accidents

broken-sidewalk-2-1090214-m.jpgOur last blog discussed the liability of landowners for accidents caused by tree roots. Today's blog addresses the liability of landowners for accidents caused by broken sidewalks.

Every premises liability case analysis involving invitees begins here:

"Generally, a property owner owes two duties to an invitee: (1) the duty to use reasonable care in maintaining the property in a reasonably safe condition; and (2) the duty to warn of latent or concealed dangers which are or should be known to the owner and which are unknown to the invitee and cannot be discovered through the exercise of due care." Aaron v. Palatka Mall, L.L.C., 908 So.2d 574, 577 (Fla. 5th DCA 2005).

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May 2, 2015

Florida Premises Liability Law: Tree Root Trip & Fall Accidents

FullSizeRender (3).jpgWe are about to file suit in a case where our client fell after catching the heel of her shoe on a tree root as she was traversing a raised, curbed planting bed that was six to eight feet wide, on the way back to her parked car from an employer-sponsored holiday party. (The photo at right shows the accident scene.) The accident happened at night under dim lighting conditions. Our client sustained a trimalleolar fracture.

We blame the commercial property owner for causing the accident by failing to maintain the premises in a reasonably safe condition, and failing to give warning of the concealed dangerous condition. We expect the property owner to counter that it had no duty to make the landscaping area in its parking lot fit for pedestrian traffic, and that the tree root was so obvious so as not to constitute a dangerous condition.

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April 22, 2015

Florida Jury Trial Law: Two Grounds for New Trial

scales.jpgWhile the American jury system is one of the greatest human inventions, it is not infallible. At times our peers are influenced by prejudice, passion, or corruption; they sometimes ignore or misconceive evidence, take improper elements of damages into account by speculation and conjecture.

A verdict based on any of these elements should be rejected by the trial judge and superior appellate courts. There are various procedures for putting the decision before the respective courts. Rather than address those procedures, this blog will focus on the legal standards the courts consider.

There are two standards. The threshold standard is purely objective, the other standard is a hybrid of objective and subjective analysis.

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April 20, 2015

Florida Personal Injury Litigation: No Such Thing as a "Facebook Privilege"

Facebook.PNGInsurance companies and their defense attorneys seek any shred of evidence to discredit plaintiffs. Facebook and other social medial have become a fertile field for this type of evidence.

Personal injury cases include claims for economic and noneconomic damages. Facebook photographs and comments can contradict these claims. Photographs from the Aspen snow trip and comments about dancing the night away on South Beach can be inconsistent with claims of intractable pain and work limitations.

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April 4, 2015

Florida Personal Injury Nondelegable Duty Case Study

L1010896.JPGEarlier this year our law firm participated in a one week jury trial against a condominium association and a general contractor seeking damages for personal injuries sustained by our client, an elderly woman. The association hired the general contractor to rebuild a wood dock that ran, unimpeded, behind each condo unit in the community alongside a North Miami Beach canal. The first thing the contractor did was remove every other wood plank through the entire length of the dock. It then undertook to replace every plank, beginning in a small section and working east and west in each direction as the work progressed. After the GC had laid down 100 linear feet of new wood, it got into a dispute with the association over payment issues. This resulted in a complete work stoppage in late July of 2012; the GC performed no more work on the site after this point. Our accident happened on November 11, 2012, nearly four months later.

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March 29, 2015

Florida Workers' Compensation Liens -- 440.39, the Manfredo Formula, etc.

dollars.jpgMaximizing the client's net recovery should be a primary focus in every case. Court costs, litigation and medical expenses, and insurance liens are elements often charged against the gross recovery.

One of the insurance liens is a creature of Florida Statute 440.39(2). This lien comes into play when a person injured in the course and scope of employment receives both workers' compensation benefits and compensation from a third-party tortfeasor. 440.39(2) provides that a portion of the proceeds received from the tortfeasor must be reimbursed to the employer or its workers' compensation insurance company.

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March 24, 2015

Florida Personal Injury Law: Inconsistent vs. Inadequate Verdicts

scales.jpgFlorida civil trial juries are given wide latitude in resolving factual conflicts. A verdict supported by evidence will be allowed to stand even if other evidence backs a contrary result. However, inconsistent and inadequate verdicts must be modified or reversed.

An "inconsistent" verdict can only be corrected by the jury that has rendered it. Before the jury is excused, the party or parties taking issue with the verdict must ask the court to instruct the jury on the inconsistencies and send it back for further deliberation. If the request is denied, the jury is excused.

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March 18, 2015

Florida Personal Injury Law: Zero Verdict for Pain & Suffering [can be] Inadequate as a Matter of Law

scales of justice.jpgIn Parrish v. City of Orlando, 53 So.3d 1199 (Fla. 5th DCA 2011), the plaintiff suffered a comminuted proximal humerus fracture in her left shoulder from tripping and falling on an uneven sidewalk. The jury awarded $51,929.02 for past medical expenses, and $130,000 for future medical expenses. However, the jury awarded no past or future noneconomic damages. Because of the zero award, Ms. Parrish moved the trial court post-verdict to order an additur (F.S. 768.74) and/or a new trial (FRCP 1.530). When her motion was denied, she appealed.

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February 20, 2015

The Case Against Jeb Bush

greed2.jpgLawyers know best!

Jeb's running for president of the United States. He has a strong chance of winning.

People who care about the rights of families and individuals should be fearful of a Jeb Bush presidency.

For the next two years, millions of dollars will be spent trying to shape Bush's image in voters' minds. Among the themes will be that he, like his brother before him George W. Bush was purported to be, is a compassionate conservative.

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February 16, 2015

Florida Workers' Compensation: Don't Fall Into PTD Supplemental Payments Trap

dollars.jpgSome of Florida's most severely injured workers may qualify for Permanent Total Disability (PTD) benefits under Section 440.15(1) Florida Statutes. In the absence of a catastrophic injury such as a spinal cord injury involving severe paralysis, amputation of an arm, a hand, a foot, or a leg, severe brain or closed-head injury, or total or industrial blindness, the qualifying standard is that the injured employee is not capable of engaging in at least sedentary employment within a 50-mile radius of the employee's residence. (The Florida Legislature, under the control of Jeb Bush, changed the PTD standard from "light duty" to "sedentary employment." This significant difference keeps many severely injured, deserving workers from qualifying for PTD.)

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February 7, 2015

Florida Workers' Compensation Law: Compensability of Accidents During Company Sanctioned Activities

Our firm has been hired by a woman who recently sustained a serious leg injury while walking back to her car from a company sponsored holiday party. The employer has refused to provide workers' compensation benefits, claiming that the accident did not happen in the course and scope of employment.

While our firm handles both workers' compensation and premises liability cases, we have agreed to pursue a premises liability action against the employer. (The accident happened on its property.) We believe that the employer and possibly others are responsible for creating an accident-causing dangerous condition.

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January 28, 2015

Florida Personal Injury Law: Tenuous Reasoning Allows Admission of Prejudicial Evidence

law books.jpgGetting the injured party fully compensated for the cost of future medical care is a primary concern in most personal injury cases. The Plaintiff has one shot in court to get the jury to award an adequate amount of money to cover the cost of these future medical expenses. Expert and lay evidence is presented on the issue. Once the decision is made, the Plaintiff cannot return to court to seek more money.

It is not uncommon for medical charges to exceed the amount medical providers willingly accept as payment. This is typically the case, for example, for payments made by health insurance and Medicare. Providers often agree with health insurance carriers to accept reduced payments as payment in full. Medicare, on the other hand, has a schedule of allowable charges for every service, usually well below usual and customary charges. A provider that accepts Medicare cannot balance bill the patient.

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January 16, 2015

Florida Workers' Compensation PTD/SSD Offset Vis-a-Vis ACE & AWW

law books.jpgInjured workers who qualify for workers' compensation permanent total disability benefits (PTD) under Florida Statue 440.15(1), receive 66-2/3% of their average weekly wage (AWW) payable biweekly. Such injured workers may also qualify for Social Security Disability (SSD) monetary benefits payable monthly.

The sum of the two benefits may exceed 100% of an injured worker's AWW. Is the injured worker allowed to receive more than his AWW? It depends.

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