July 13, 2014

Tort "Deform" Perpetrated by Right Wing to Deny Individuals of Constitutional Rights

scales of justice.jpgCorporate America has campaigned for more than thirty years to brainwash average people into believing that America's civil justice system is a bad thing. Sadly, the campaign has worked, fostering views contrary to one of the most fundamental principle on which America was founded: that the courts are to be a neutral forum in which the small can take on the big. Reference: We the People.

The purpose of this blog is to build a resistance to the propaganda through education. Ignorance is not bliss when basic civil rights hang in the balance.

What is the civil justice system? It is the system individuals and corporations use for redressing alleged wrongs. The fundamental components of the system are judges, juries, and lawyers.

What is a "tort"? A tort is harm caused intentionally or by negligence. The best known torts involve personal injuries, but can include other types of damages. The aggrieved party, the Plaintiff, sues the Defendant, for monetary damages.

Aren't these personal injury or "tort" lawsuits flooding the courts? No. Tort cases make up only 6 percent of the entire civil court caseload and they are decreasing. The National Center for State Courts shows a 21 percent decline in tort filings from 1996 to 2005. Richard LaFountain et al., Examining the Work of State Courts: A National Perspective from the Court Statistics Project (National Center for State Courts 2009) at 1, 2. (The Court Statistics Project is a joint project of the Conference of State Court Administrators, the U.S. Department of Justice's Bureau of Justice Statistics and the National Center for State Courts.)


  • Only 10 percent of injured Americans ever file a claim for compensation, which includes informal demands and insurance claims. Only two percent file lawsuits. David A. Hyman and Charles Silver, "Medical Malpractice Litigation and Tort Reform: It's the Incentives, Stupid,"59 Vand. L. Rev. 1085, 1089 (May 2006) (citing Thomas F. Burke, Lawyers, Lawsuits, and Legal Rights: The Battle over Litigation in American Society 3 (2002));Rand Institute for Civil Justice, Compensation for Accidental Injuries in the United States (1991).

  • Academics generally concede there is no evidence that "frivolous" lawsuits are a problem.

  • In 1999, the Institute of Medicine (IOM) concluded that between 44,000 and 98,000 Americans die each year (and 300,000 are injured) due to avoidable medical errors in hospitals alone. Yet eight times as many patients are injured as ever file a claim; 16 times as many suffer injuries as receive any compensation. The Harvard School of Public Health closely examined 1,452 closed claims and concluded that "[p]ortraits of a malpractice system that is stricken with frivolous litigation are overblown." David M. Studdert et al., "Claims, Errors, and Compensation Payments in Medical Malpractice Litigation," New England Journal of Medicine, May 11, 2006. The study found that most injuries resulting in claims were caused by medical error, and that those that weren't were, nevertheless, not "frivolous" claims.

  • In 2005, tort jury and bench trials together constituted 1.3 percent of all general civil dispositions in 79 jurisdictions reporting and 3.5 percent of all tort dispositions in 104 jurisdictions reporting.

What is "tort reform"? This term refers to laws that benefit the corporate sector. These laws make it more difficult for injured people to sue in civil court, or limit the power of judges and juries to make decisions in tort cases. (See these examples: 2010 Florida Legislature Further Curtails the Rights of Medical Malpractice Victims; Vehicle Owners - Other Than Rental Agencies - Vicariously Liable Under Florida Law.)

But isn't it easy to "win" money in a lawsuit by forcing the other side (usually an insurance company) to settle? No. Insurance companies do not settle frivolous cases. For example, Duke University Law Professor Neil Vidmar found in his research: "In interviews with liability insurers that I undertook in North Carolina and other states, the most consistent theme from them was: 'We do not settle frivolous cases!' The insurers indicated that there are minor exceptions, but their policy on frivolous cases was based on the belief that if they ever begin to settle cases just to make them go away, their credibility will be destroyed and this will encourage more litigation."

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July 13, 2014

Florida Personal Injury Law: Alcohol Use as Evidence of Negligence

drunk.jpgThere is a reason why the following inquiry is a standard interrogatory for personal injury cases in the Florida Rules of Civil Procedure:

Did you consume any alcoholic beverages or take any drugs or medications within twelve hours before the time of the incident described in the complaint? If so, state the type and amount of alcoholic beverage, drugs or medication which were consumed and when and where you consumed them.
While excessive alcohol consumption can support a claim for punitive damages -- see this blog:, Special Considerations in Florida Motor Vehicle Crash Cases Involving Alcohol (DUI) -- evidence of alcohol use, even short of "voluntary intoxication," can be relevant to the issue of simple negligence. It's application is not limited to vehicle accident cases.

The Florida Supreme Court decided long ago that evidence of a person being under the influence of intoxicants at the time of an automobile collision is admissible, on the theory that a driver so exhilarated is likely to be abnormally reckless. Taylor v. State, 46 So.2d 725 (Fla., 1950). It is valuable and useful to corroborate or render more likely, evidence that is doubtful or disputed. Smith v. State, 65 So.2d 303 (Fla., 1953).

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July 3, 2014

Florida Personal Injury Law: Duty Opens Courthouse Doors

Every personal injury plaintiff must plead and prove that the defendant owed and breached a duty of care and that the breach proximately (i.e., foreseeably and substantially) contributed to the specific injury suffered. These are the prima facie elements of a personal injury case.

Whether a duty exists is a matter of law (i.e., for court determination) and is not a factual question for the jury to decide. The duty element of negligence focuses on whether the defendant's conduct foreseeably created a broader "zone of risk" that poses a general threat of harm to others. See Kaisner v. Kolb, 543 So.2d 732, 735 (Fla. 1989) (citing Stevens v. Jefferson, 436 So.2d 33, 35 (Fla. 1983)). It is a minimal threshold legal requirement for opening the courthouse doors. See McCain v. Florida Power Corporation, 593 So. 2d 500 (Fla. 1992) (In footnote number 1, the court qualified and explained the concept as follows: "Of course, to determine this legal question the court must make some inquiry into the factual allegations. The objective, however, is not to resolve the issues of comparative negligence or other specific factual matters relevant to proximate causation, but to determine whether a foreseeable, general zone of risk was created by the defendant's conduct.")

On the other hand, the proximate causation element is concerned with whether and to what extent the defendant's conduct foreseeably and substantially caused the specific injury that actually occurred. Id. at 502. This is a "much more specific factual requirement that must be proved to win the case once the courthouse doors are open." Id. at 502. Generally, issues of breach, proximate cause and foreseeability as related to proximate cause are fact questions for the jury, not resolved by summary judgment. McCain and See Springtree Properties, Inc. v. Hammond, 692 So.2d 164, 167 (Fla.1997). Importantly, it is immaterial that the defendant could not foresee the precise manner in which the injury occurred or its exact extent. Restatement (Second) of Torts § 435 (1965). In such instances, the true extent of the liability would remain questions for the jury to decide. McCain at 503.

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July 2, 2014

Florida Premises Liability Law: Misapplying the Control Concept

barricade.jpgCourts and lawyers have turned the following legal principle -- whether a party has a duty of care depends on the ability to exercise control -- on its head.

These cases and countless others state the principle: Metsker v. Carefree/Scott Fetzer Co. 90 So.3d 973, 977 (Fla. 2d DCA 2012) ("In a premises liability case, the issue of whether a party has a duty of care does not depend on ownership or title to the premises. Instead, the appropriate inquiry is whether the party has the ability to exercise control over the premises."); Regency Lake Apartments Associates, Ltd. V. French, 590 So.2d 970, 974 (Fla. 1st DCA 1991 ("In general, a cause of action for premises liability does not hinge on legal title ownership, but rather on the failure of the party who is in actual possession or control to perform its legal duty."); Haynes v. Lloyd, 533 So.2d 94, 946 (Fla. 5th DCA 1988) ("The crux of the cause of action for premises liability is not legal title or ownership, but the failure of a person who is in actual possession and control (be it the owner, an agent, a lessee, a construction contract, or other possessor with authority to control), to use due care to warn or to exclude, licensees and invitees from areas known to the possessor to be dangerous because of operations or activities or conditions.").

Too often, however, the principle is misunderstood and misapplied. It is most commonly misunderstood and misapplied to mean that lack of control means lack of duty as a matter of law. It doesn't.

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June 29, 2014

Florida Supreme Court Addresses Failure to Attend Uninsured/Underinsured (UM) CME

scales of justice.jpgI have blogged here ad nauseam about the continual conflict between insurance companies and their insureds over claims. While carriers insist upon receiving premium payments timely, their all too common approach to the claims process is delay and deny.

Carriers have at their disposal a bag of tools designed to effectuate this delay/deny business model. Examination Under Oath (EUO) (an oral examination conducted under oath by an insurance company of an insured making a claim under a policy), Independent Medical Examination (IME), appraisal, policy application misrepresentation, refusal to cooperate are just some of the tools at their disposal. Some are statutorily prescribed, others are a matter of contract.

An insurance policy is a contract. While statutes control various rights and obligations between carriers and insureds, the terms of the insurance policy determine many others.

Courts frequently become embroiled in conflicts involving the application of contested policy provisions. One such conflict of significance was fought out in State Farm v. Curran, (Fla. 2014). The Florida Supreme Court framed the conflict as follows:

WHEN AN INSURED BREACHES A COMPULSORY MEDICAL EXAMINATION PROVISION IN AN UNINSURED MOTORIST CONTRACT, DOES THE INSURED FORFEIT BENEFITS UNDER THE CONTRACT WITHOUT REGARD TO PREJUDICE? IF PREJUDICE MUST BE CONSIDERED, WHO BEARS THE BURDEN OF PLEADING AND PROVING THAT ISSUE?
Curran, State Farm's insured, sustained catastrophic injuries in a vehicle crash. Because the at-fault party's insurance coverage was inadequate, Curran demanded from State Farm the $100,000 in UM available under his own policy. He gave State Farm thirty days to tender the money, estimating his damages to be $3.5 million because she suffered from reflex sympathetic dystrophy syndrome (RSD) type 1. On the 29th day, State Farm demanded that Curran undergo a Compulsory Medical Exam (CME) pursuant to the terms of the policy. Curran refused and proceeded to sue State Farm. A jury trial culminated in an award of $4,650,589 in damages to Curran.

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June 25, 2014

Setting the Record Straight on Medical Malpractice and the Law in Florida

caduceus-1219484-m.jpgHere is my Letter to the Editor, word for word, that was published by the Miami Herald on June 25, 2014:

WRONGFUL DEATH CAP


Re the June 19 letter DeGennaro the best person to lead Miami VA: While Barth Green may be a prominent South Florida doctor, he is hardly a legal scholar. While writing in support of Dr. Vincent DeGennaro, his "close friend and respected colleague," he tries to bolster his argument by adding gratuitous debunked comments about doctors fleeing Florida because of its torts laws.

It appears that Dr. Green hasn't read McCall v. United States, the historic decision handed down by the Supreme Court of Florida in March of this year. The decision struck down as unconstitutional the statutory cap on wrongful death damages caused by medical malpractice. The court determined that the Florida Legislature had been persuaded to impose caps, in large part, based on bogus evidence presented by Gov. Jeb Bush's Select Task Force on Healthcare Professional Liability Insurance that, "Florida is in the midst of a medical malpractice insurance crisis of unprecedented magnitude," which is forcing physicians to flee the state.

The evidence studied by the court showed both claims to be patently false. In fact, the irrefutable evidence demonstrated that "the numbers of physicians in both metropolitan and non-metropolitan areas have grown."

The McCall opinion is a must-read for anyone interested in the truth about medical malpractice and the law in Florida.

It is important to all of us that opinions related to the medical legal system be founded on solid evidence.
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Contact us toll free at 866-785-GALE or by email (jeffgalelaw@bellsouth.net) for a free, confidential consultation to learn your legal rights.

Jeffrey P. Gale, P.A. is a South Florida based law firm committed to the judicial system and to representing and obtaining justice for individuals - the poor, the injured, the forgotten, the voiceless, the defenseless and the damned, and to protecting the rights of such people from corporate and government oppression. We do not represent government, corporations or large business interests.

While prompt resolution of your legal matter is our goal, our approach is fundamentally different. Our clients are "people" and not "cases" or "files." We take the time to build a relationship with our clients, realizing that only through meaningful interaction can we best serve their needs. In this manner, we have been able to best help those requiring legal representation.

June 22, 2014

Florida Premises Liability Law - Possession Not (Necessarily) 9/10ths of The Law

L1010896 (300x232).jpgWhen it comes to determining ownership of property, there is a popular expression that possession is 9/10ths of the law. Most of the time, it's not that simple.

Some premises liability defendants put forth a reverse form of the possession proposition to avoid being held responsible for causing an accident. The proposition is that a party cannot be liable if it did not have possession or control of the property at the time of the accident. Most of the time, it's not that simple.

Our law firm is currently involved in litigation against a condominium association and a general contractor that it hired to replace deck boards on a dock running behind each townhouse in the complex. The general contractor created a dangerous condition by removing boards from the existing deck. Our client, a guest at a party hosted by a townhouse owner, fell into an opening where boards had been removed, sustaining serious injuries, including a broken humerus.

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June 14, 2014

Being Duped by Testosterone Therapy Ads Can be Hazardous to Your Health

people.jpgIt seems that not a television or radio ad segment goes by today without the marvels of testosterone therapy being touted as the fountain of youth. Be especially cautious because buying the claims can be hazardous to your health! Not only that, but the benefit claims are in doubt.

While prescription testosterone therapy has been approved by the FDA for the treatment of men for a recognized medical condition known as hypogonadism, the ad campaigns run by the makers of testosterone products Androgel and Axiron cleverly promote testosterone usage as the fountain of youth for those who merely have low testosterone levels due to the natural aging process. Low testosterone levels due to the natural aging process is a different condition than hypogonadism, which is a "clinical syndrome that results from the failure of the testis to produce physiological levels of testosterone (androgen deficiency) and a normal number of spermatozoa due to a disruption of one or more levels of the hypothalamic-pituitary-testicular axis."

Why should this matter? Because testosterone usage has been associated with many harmful side effects, including:

Lawsuits are starting to be brought against manufacturers for those who have suffered injuries as the result of testosterone usage, with the chief allegation against them being that the dangers were known but suppressed for economic gain.

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June 13, 2014

Florida's Second DCA Defines the Word "Loans" Under Dangerous Instrumentality Statute

truck2.jpgVicarious liability has been recognized in Florida since 1920. Southern Cotton Oil Co. v. Anderson, 80 Fla. 441, 86 So. 629 (1920). As applied to motor vehicles, the legal concept allows the owner of a vehicle to be held liable without fault for damages caused by the negligent operation of the vehicle by a consensual driver. This is known as the Dangerous Instrumentality Doctrine.

The financial exposure of owners for damages under the Dangerous Instrumentality Doctrine, as contained in section 324.021(9)(b)(3), Florida Statutes, is lower than it is for consensual drivers. For the statutory section to apply, the vehicle must have been loaned to the permissive user, as demonstrated by the following language: "3. The owner who is a natural person and loans a motor vehicle to any permissive user...."

Disputes have arisen over the meaning of the word "loans" in this section. Recently, in Youngblood v. Villanueva (opinion filed May 21, 2014), Florida's Second District Court of Appeal held that the vehicle involved in a crash, resulting in a wrongful death, had not been loaned. The facts of the case were set forth in the court's opinion:

The testimony at trial established that Youngblood consigned his uninsured vehicle to Teddy Aponte of Extreme Auto Sales with instructions to sell the vehicle. Youngblood testified that he never wanted to see the vehicle again after he handed the keys to Aponte, and he gave him no time limit in which to sell the vehicle. Because Aponte was driving the vehicle for his personal use when he struck and killed Eduardo Villanueva, Youngblood contended that this constituted a theft or conversion which exempted him from liability.

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June 12, 2014

Injured Motorcyclist Benefiting From Florida Uninsured/Underinsured Motorist (UM) Coverage

motorbike-1055084-m.jpgMotor vehicle bodily injury (BI) insurance compensates for economic and non-economic damages caused by the insured at-fault driver and vehicle owner. The amount available under any particular policy is capped by the coverage limits chosen by the insured.

BI coverage is not mandatory in Florida. The insured must pay a premium for the coverage on top of what is required to obtain the mandatory coverage of property damage liability and personal injury protection (PIP). For this reason, many Florida drivers do not maintain BI coverage.

Uninsured/Underinsured Motorist coverage is designed to fill the void where BI is either not available or the BI limit is less than the total damages sustained. Put another way, UM provides coverage for damages which you are legally entitled to recover from the owner or operator of an uninsured or underinsured motor vehicle who causes an accident which results in your bodily injury. Like BI, UM insurance is not mandatory.

Is UM available to a motorcyclist who sustains personal injuries in a crash caused by an uninsured motorist? Maybe.

Continue reading "Injured Motorcyclist Benefiting From Florida Uninsured/Underinsured Motorist (UM) Coverage " »

June 10, 2014

Breaching a Personal Injury Confidential Settlement Agreement Can Have Serious Consequences

handshake2.jpgIn a decision demonstrating strong support of confidentiality provisions, even at the expense of family dynamics, in Gulliver Schools, Inc. v. Snay, the Third District Court of Appeal punished a father (the Plaintiff) for informing his college-age daughter that a settlement was reached with the Defendant in an emotional case.

When his employment contract was not renewed, the Plaintiff sued the Defendant for age discrimination and retaliation under the Florida Civil Rights Act. Florida Statute Sections 760.01-760.11 and 509.092. Within days of the settlement, which included a confidentiality provision, the Plaintiff's daughter posted the following message on her Facebook page.

Mama and Papa Snay won the case against Gulliver. Gulliver is now officially paying for my vacation to Europe this summer. SUCK IT.
As a result, the Defendant refused to pay the Plaintiff a large portion of the money promised under the settlement agreement. Plaintiff's subsequent Motion to Enforce was granted by the trial court. However, the trial court order was reversed on appeal.

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May 13, 2014

Florida Bad Faith Insurance Law: Citizens Property Insurance Corp. Responsible to Real Citizens

law books.jpgFlorida Statute 624.155 provides a civil remedy for persons damaged by an insurer's failure to settle claims in good faith. The remedy can include an award of damages in excess of the insured's policy limits, attorney's fees and litigation costs. This threat is the spur that motivates insurance companies to handle claims properly. (Side note: Insurance companies hate that their insureds have this stick at hand to keep them in line. Each legislative session for the past few years, Republican legislators friendly with the insurance industry have sponsored legislation to eliminate or water down the law. Thankfully, each effort has failed. Unfortunately, they will continue trying.)

The law was recently put to the test in Perdido Sun Condominium Association, Inc. v. Citizens Property Insurance Corporation, 129 So.2d 1210 (Fla. 1st DCA 2014).

Citizens is an insurer created by the legislature for the public purpose of providing "affordable property insurance to applicants who are in good faith entitled to procure insurance through the voluntary market but are unable to do so." § 627.351(6)(a)1., Fla. Stat. As a creature of statute, Citizens' operations, procedures, duties, and legal status are governed by section 627.351(6), Florida Statutes.

After its insured property was damaged by a hurricane in 2004, Perdido Sun made a claim on its insurance policy with Citizens. Perdido Sun was not satisfied with the amount of Citizens' eventual payment on the claim and filed a breach of contract action to recover additional sums under the insurance contract. Perdido Sun prevailed on the breach of contract claim.

Based on the result in the breach of contract case, Perdido Sun filed a second lawsuit against Citizens for the civil remedy provided in section 624.155(1)(b)1., Florida Statutes, a statutory "bad faith" claim. Citizens asserted that it was immune from suit under section 627.351(6)(s)1., Florida Statutes, and that a statutory bad-faith action under section 624.155 was not among the specifically listed exceptions to this immunity. § 627.351(6)(s)1., a.-e., Fla. Stat.

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April 6, 2014

Gigantic Loophole in Florida's Wrongful Death Act

scales of justice.jpgIn McCall v. United States of America, the Florida Supreme Court declared that the statutory cap on noneconomic damages in medical malpractice cases was unconstitutional. (In reaching this conclusion, the court determined that the numbers Governor Jeb Bush and his cronies presented to the Florida Legislature to demonstrate a medical malpractice crisis were cooked. In other words, the numbers were phony.)

As important and right as this decision is, a gigantic and dangerous wrong remains alive within the medical malpractice civil justice system.

Florida's Wrongful Death Act is the civil law blueprint for addressing a wrong resulting in death caused by negligence. Section 768.21 Florida Statutes lays out who may be compensated for the loss of a loved one and by what measure. In all but one type of case where death has resulted from negligence, the children, no matter their ages, of a parent who has died without leaving behind a surviving spouse may recover from the wrongdoer for pain and suffering and the loss of the decedent's companionship and protection. (See this blog for an easy to understand wrongful death survivors and damages chart.)

The one exception? For death caused by medical malpractice.

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April 2, 2014

Purchase a Defense Attorney With Florida Bodily Injury (BI) Vehicle Insurance

handshake.jpgBodily Injury (BI) insurance sold in Florida covers the insured for damages caused by his or her negligence up to the policy limits. The minimum coverage limit is $10,000, but can be in the millions. Inexplicably, BI insurance is not mandatory in Florida. Only PIP and Property Damage Liability are mandatory.

While the difference between $10,000 and, say, $1,000,000 in BI coverage is significant, the insurance company has a duty to defend the insured equally regardless of the limit. This is another benefit of maintaining bodily injury insurance.

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April 1, 2014

Florida Vehicle Accident Law: Parental & Guardian Vicarious Liability for Minor

application.jpgThis link contains an overview of permit and license standards in Florida for drivers between the ages of 15 and 17.

Florida Statute §322.09(1)(a) requires an authorized adult (e.g., parent or guardian) to sign and verify the minor's application. In turn, §322.09(2) makes the adult jointly and severally liable for any damages caused by the negligence or willful misconduct of the minor under the age of 18 years when driving a motor vehicle, any motor vehicle, upon the roadway.

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