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.

At the point of the work stoppage, the sections of the dock both to the east and west of the 100 foot completed portion remained demolished. Significantly, neither the GC nor the condominium association ever installed a transverse barrier blocking access to the demolished sections from the completed portion.

Our client did volunteer work to reelect President Obama. On November 11, 2012, five days after the election, she was attending a victory party at a townhome located in the condominium complex. The completed portion of the dock was located behind the townhome. During the party our client exited the rear of the townhome. She turned right, west, on the dock and began a leisurely stroll. She was unaware of the demolition work. Dim ground lighting lined the length of the dock. She was viewing the boats lining both sides of the canal and enjoying the reflections in the water as she walked. With one step she went from the healthy dock into the demolished area, falling straight down through an opening in the dock where there had once been a wood board. Her fall was broken when both arms caught on portions of the deck. This caused her right humerus bone to snap in half. Dangling in the hole unable to extricate herself, she was eventually rescued when someone heard her screams for help.

The jury‟s verdict assigned fault for Plaintiff‟s injuries as follows:

Plaintiff: 10%
Condo Association: 15%
General Contractor: 25%
Party Host: 50%

None of the parties (our client, the condo association and the GC were the parties to the lawsuit; the party host was not) have challenged the jury‟s apportionment of fault. We have filed a motion for entry of final judgment asking the court to make the condo association and the GC jointly and severally liable for 90% of the liability. Our legal theory is that each had a nondelegable duty to maintain safety on the dock. We expect the defendants to oppose the motion.

Florida common law imposes upon a property owner or possessor a nondelegable duty to maintain the premises in a reasonably safe condition, a duty that applies to condominium associations. Florida law also provides that the nondelegable duty to maintain property in a reasonably safe condition may also arise from statutory and contractual obligations, such as those that apply to the condo association in our case.

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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.

The starting point for resolving the workers' compensation lien is the formula set forth in 440.39(3)(a), explained in Manfredo v. Employer's Casualty Insurance Company, 560 So.2d 1162 (Fla 1990) as

the third party settlement/recovery amount less (-) attorney fees and costs divided (/) by full case value = the % value of the wc lien.
Here's a simple hypothetical:
  1. WC lien (medical, indemnity, settlement, etc.): $100,000

  2. $250,000 third party settlement less fees (40%) and costs ($35,000) = $135,000

  3. Full case value: $1,000,000. (The case was for less due to tough liability, coverage limits, etc.)

  4. $135,000 divided by $1,000,000 = 13.5%

  5. 13.5% of $100,000 = $13,500.

Continue reading "Florida Workers' Compensation Liens -- 440.39, the Manfredo Formula, etc." »

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.

A verdict is inconsistent where the jury's findings in two or more respects regarding a material fact is such that both cannot be true and therefore stand at the same time. In such circumstances, contradictory findings mutually destroy each other. See, Crawford v. DiMicco, 216 So.2d 769, 771 (Fla. 4th DCA 1968).

In personal injury cases, amounts awarded by the jury for past and future noneconomic damages (commonly referred to as pain and suffering) are sometimes challenged as being inconsistent. With regard to zero or low awards, the law is that

"A verdict is not necessarily inconsistent because it fails to award enough money, or perhaps no money at all, for future noneconomic damages after awarding past and future medical expenses and past lost earnings. Under such circumstances, the issue is the adequacy of the award, not its consistency with any other award by the verdict." Avakian v. Burger King Corp., 719 So.2d 342, 344 (Fla. 4th DCA 1998).
Inadequate verdicts are corrected by the trial judge. A motion seeking the correction must be filed within fifteen (15) days of the verdict. See, Fla.R.Civ.P. 1.530(b). An "inadequate" verdict can be corrected by an additur, Florida Statute 768.74(2), or a new trial.

Florida courts have long recognized the duty of the trial court to grant a new trial if the verdict is against the manifest weight of the evidence. Cloud v. Fallis, 110 So. 2d 669, 673 (Fla. 1959); Miles v. Ware, 204 So. 2d 524, 526 (Fla. 3d DCA 1967). While a trial court's authority to grant a new trial where a verdict is grossly inadequate was well entrenched in Florida's common law, the Legislature codified the principle by enacting §768 74, Fla. Stat. ITT Hartford Insurance Co. of the Southeast v. Owens, 816 So. 2d 572, 579 (Fla. 2002). Fla. 2002).

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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.

A verdict comes to an appellate court clothed with a presumption of regularity and should not be disturbed if supported by the evidence. Deklyen v. Truckers World, Inc., 867 So.2d 1264, 1266 (Fla. 5th DCA 2004).

Because the verdict in Parrish was not supported by the evidence, the Fifth District Court of Appeal reversed the trial court's denial and remanded for a new trial on damages. In the appeal court's view, the verdict was inadequate as a matter of law.

A jury may refuse to award noneconomic damages when the defendant has presented evidence disputing such damages or when future noneconomic damages are uncertain or speculative. Allstate Ins. Co. v. Manasse, 707 So.2d 1110 (Fla.1998); see also Tavakoly v. Fiddlers Green Ranch of Fla., Inc., 998 So.2d 1183, 1184-85 (Fla. 5th DCA 2009) (holding that jury's failure to award injured horse rider damages for future pain and suffering did not warrant granting rider new trial, even though jury awarded rider $27,000 for future medical expenses over 27 years; record did not contain indisputable medical evidence of permanent impairment or that rider would continue to experience pain into future, and award of future medical expenses was consistent with treating physician's testimony that rider's condition should be monitored on annual basis); Allstate Ins. Co. v. Campbell, 842 So.2d 1031, 1035 (Fla. 2d DCA 2003) ("[A]s in Manasse, the need for future economic damages was disputed and the jury awarded only minimal future economic damages. Therefore, the jury's failure to award future noneconomic damages was supported by the evidence...."); Dyes v. Spick, 606 So.2d 700, 704 (Fla. 1st DCA 1992) ("Due to the somewhat speculative nature of what may occur in the future, it is perhaps not unwise to afford great latitude to the jury in its determinations as to [future] damages.").

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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. The thought sends a chill down my spine.

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 the minds of voters. Among the themes will be that he, like his brother George W. Bush was purported to be, is a compassionate conservative.

Conservative he may be, although ultra conservative is more like it. Compassionate? Not even close.

Jeb Bush served as the 43rd Governor of my state (Florida) from 1999 to 2007. For lawyers who represent individuals and families, they are known as the "hell years."

While political ads and speeches shape perceptions, a politician's true character is revealed in the laws he or she are responsible for creating. Laws are where the rubber meets the road.

By that measurement, Jeb Bush is a cold and callous human being. Proof of this lies in his handling of Florida's workers' compensation system and medical malpractice laws, where power and profits were placed over people.

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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.)

The PTD compensation rate is 66-2/3 percent of the employee's average weekly wages during the continuance of such total disability to age 75, unless the employee is not eligible for social security benefits under 42 U.S.C. s. 402 or s. 423 because the employee's compensable injury has prevented the employee from working sufficient quarters to be eligible for such benefits, notwithstanding any age limits.

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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.

We can proceed with a liability case against the employer because, by asserting the course-and-scope defense, it has waived workers' compensation immunity. (Since we agree that the accident did not happen in the course and scope, even if the employer/carrier had accepted the accident as workers' compensation compensable, we might have challenged that conclusion in order to pursue the liability case. See City of Miami v. Gutierrez, 979 So.2d 1028 (Fla. App., 2008) (City's effort to hide behind workers' compensation immunity rejected because the employee was engaged in a recreational activity, unrelated to the work she was hired to perform at the time of the accident.).)

Not every employee whose workers' compensation claim has been denied has the option of pursuing a personal injury case. Personal injury cases require a duty and a breach of that duty (usually negligence) by the defendant. Negligence is often missing in accident cases involving employees.

Our client caught the heal of her shoe on a tree root as she was crossing over a swale to her car. The employer/property owner had not installed dedicated paths through the swale, leaving people to cross back and forth over uneven terrain. The accident happened at night.

Continue reading "Florida Workers' Compensation Law: Compensability of Accidents During Company Sanctioned Activities" »

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.

The courts and legislature have considered whether evidence of these collateral sources of payment should be presented to a jury for its consideration in determining future medical expenses. In my opinion, some of the conclusions are disturbing.

In Gormley v. GTE Prods. Corp., 587 So. 2d 455 (Fla. 1991), Florida's Supreme Court announced that Florida's common law collateral source rule "functions as both a rule of damages and a rule of evidence." Id. at 457.

The rule of damages "is designed to prevent tortfeasors from benefiting unjustly from the injured parties' receipt of collateral benefits for their injuries and it avoids penalizing parties who purchase insurance, which would create a disincentive to buy coverage in the first instance. ... The rule also maintains a level of deterrence against tortfeasors that would be lost if awards against them were reduced by collateral sources, and the rule obviously promotes full recovery for injured parties versus some reduced or diminished level of compensation." State Farm Mutual Automobile Insurance Company v. Joerg.

In contrast, the rule of evidence is based on a different policy concern. It was designed to prevent the introduction of evidence that "misleads the jury on the issue of liability and, thus, subverts the jury process. Because a jury's fair assessment of liability is fundamental to justice, its verdict on liability must be free from doubt, based on conviction, and not a function of compromise." Gormley at 458.

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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.

Florida Statute 440.15(9)(a) and 42 U.S.C. s. 424(a) address the issue. The federal law allows the combined payments to equal 80% of a person's average current earnings (ACE). ACE is a number, determined by one of three formulas, used by the United States Social Security Administration to calculate monthly SSD payments.

The sum of the two benefits (PTD and SSD) will be reduced if it exceeds a certain amount.

Who gets the benefit of this reduction, also referred to as an offset, the federal government or employers and their private workers' compensation insurance companies?

Continue reading "Florida Workers' Compensation PTD/SSD Offset Vis-a-Vis ACE & AWW" »

January 14, 2015

Florida Motor Vehicle Accident Law: Vicarious Liability and Negligent Entrustment Create Liability

truck2.jpgFlorida motor vehicle owners beware! You can be held to account for accidents caused by other drivers even when you are nowhere near the crash scene.

Because motor vehicles, like guns, in the wrong hands and used improperly are likely to cause great damage, Florida motor vehicle owners are liable without regard to their own fault for damages caused by the negligent operation of their vehicles. This principle is known as vicarious liability.

Vicarious liability with regard to motor vehicles has been a recognized legal principle in Florida since 1920. Southern Cotton Oil Co. v. Anderson, 80 Fla. 441, 86 So. 629 (1920). Under this doctrine, the owner is liable for damages caused by the negligent operation of his or her vehicle by a consensual driver. (If the vehicle is stolen, the owner is not liable. However, the owner may be liable if the vehicle is used without permission under circumstances where the owner knew or should have known this might occur. An example would be leaving car keys in plain sight of a teenager who has used the vehicle in the past without consent. Arguably, this example gets into the area of negligent entrustment.)

Vicarious liability damages are capped. Florida Statute 324.021(9)(b)3. reads as follows:

The owner who is a natural person and loans a motor vehicle to any permissive user shall be liable for the operation of the vehicle or the acts of the operator in connection therewith only up to $100,000 per person and up to $300,000 per incident for bodily injury and up to $50,000 for property damage. If the permissive user of the motor vehicle is uninsured or has any insurance with limits less than $500,000 combined property damage and bodily injury liability, the owner shall be liable for up to an additional $500,000 in economic damages only arising out of the use of the motor vehicle. The additional specified liability of the owner for economic damages shall be reduced by amounts actually recovered from the permissive user and from any insurance or self-insurance covering the permissive user. Nothing in this subparagraph shall be construed to affect the liability of the owner for his or her own negligence.
(Importantly, subparagraph (c)1 provides that "The limits on liability in subparagraphs (b)2. and 3. do not apply to an owner of motor vehicles that are used for commercial activity in the owner's ordinary course of business.")

Negligent entrustment damages are not capped; actual damages are recoverable. The capped damage limits of 324.021(9)(b)3 can be well below actual damages. For instance, damages for catastrophic injuries or death can reach into the millions.

Whereas vicarious liability is imposed against the owner without regard to fault, liability under negligent entrustment requires the fault element of negligence.

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January 14, 2015

Florida Personal Injury Law: Medical Lien Cutoff Dates

dollars.jpgIt is not uncommon in personal injury cases that some medical bills are paid by health insurance and Medicare. These payments should not be ignored by any of the parties to the personal injury case, especially the injured party.

These sources must be repaid from the proceeds of any recovery made in the personal injury case. (Note: PIP, which is mandatory no-fault motor vehicle medical insurance, does not have to be reimbursed.)

While it may be possible to negotiate the repayments, it is, of course, important to know how much is owed. Making this determination can depend on when the payments were made in relationship to when the personal injury case was settled.

This cutoff date varies depending on the entity involved.

HEALTH INSURANCE: The cutoff date depends on whether or not the health insurance policy is subject to ERISA. If it is not, the lien ends at the date of settlement. See Florida's collateral statute -- 768.76. It is fairly well established (although not conclusively -- see Coleman v. Blue Cross and Blue Shield of Alabama, Inc. So.3d , 35 FLW D2718 (Fla. 1st. DCA 12-8-2010) for a contrary view) -- that the collateral source statute does not apply to ERISA plans. ERISA lien rights are controlled by the subrogation/reimbursement language in the Summary Plan Description (SPD). The SPD should be requested, but in all likelihood its provisions are expansive, allowing for the recovery of all charges related to the accident including those made post-settlement. The plan may provide that it is not responsible for covering post-settlement accident related care.

Because ERISA laws strongly favor the carriers, dealing with ERISA liens is never pleasant. Nevertheless, we drive a hard bargain. We sometimes begin negotiating by making a low ball offer to repay 30% of the lien amount coupled with a request that the insurance carrier agree to cover future accident-related medical expenses. Another approach is to argue for a 40+% discount to account for attorneys fees and costs incurred in securing the recovery.

Continue reading "Florida Personal Injury Law: Medical Lien Cutoff Dates" »

January 4, 2015

Tort "Reform" (Deform) Endangers Us All

greed.jpgOn December 31, 2014, an article published in the Business Section of the Miami Herald, illustrated with chilling clarity the dangers posed by so-called tort reform.

In a nutshell, "tort reform" is the movement supported by right-wing interest groups to block and limit recoveries in personal injury cases. The propaganda disseminated to support these efforts is that most lawsuits are frivolous. Huge sums of money and influence have been invested to make the public believe this nonsense. Sadly, the smear campaign has been successful.

That success spells danger to every member of our society.

The Miami Herald article describes how tort reform has prevented law firms from prosecuting claims against General Motors for accidents caused by defective ignition switches resulting in death and catastrophic injuries. By placing arbitrary caps on the amount of damages that can be awarded for injury or death, rather than allowing a jury to make the determination after considering the evidence, law firms cannot afford to prosecute the claims. Quite simply, the investment in time and money doesn't make business sense.

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December 29, 2014

Florida's Bad Faith Law Supposed to Keep Insurance Companies in Line

scales.jpgInsurance companies selling coverage in Florida have a fiduciary obligation to protect their insureds from judgments exceeding the limits of their insurance policies. Berges v. Infinity Ins. Co., 896 So.2d 665 (Fla. 2004). The obligation was well articulated in Boston Old Colony Insurance Co. v. Gutierrez, 386 So.2d 783 (Fla.1980):

An insurer, in handling the defense of claims against its insured, has a duty to use the same degree of care and diligence as a person of ordinary care and prudence should exercise in the management of his own business. For when the insured has surrendered to the insurer all control over the handling of the claim, including all decisions with regard to litigation and settlement, then the insurer must assume a duty to exercise such control and make such decisions in good faith and with due regard for the interests of the insured.... The insurer must investigate the facts, give fair consideration to a settlement offer that is not unreasonable under the facts, and settle, if possible, where a reasonably prudent person, faced with the prospect of paying the total recovery, would do so. Because the duty of good faith involves diligence and care in the investigation and evaluation of the claim against the insured, negligence is relevant to the question of good faith.
Ordinarily, "[t]he question of failure to act in good faith with due regard for the interests of the insured is for the jury." Gutierrez, 386 So.2d at 785; see also Campbell v. Gov't Employees Ins. Co., 306 So.2d 525, 530-31 (Fla.1974) ("[R]easonable diligence and ordinary care [are] material in determining bad faith. Traditionally, reasonable diligence and ordinary care are considerations of fact -- not of law.").

In Florida's civil justice system, unless a court is sitting as the trier of fact, which is the exception rather than the rule, the court's role is typically limited to ruling on matters of law, leaving fact questions to be resolved by juries. Only when pleadings and evidence properly filed show that there is no genuine issue as to any material fact, is the court supposed to enter judgment as a matter of law. This is called Summary Judgment. See FRCP 1.510. Given the importance of juries in the civil justice system, the procedure is supposed to be used sparingly and with caution. (Citations omitted because they are so plentiful.)

Unfortunately, some Federal court trial judges have chosen to ignore this admonition. What follows is a discussion of some recent Federal Court insurance bad faith cases.

Harris v. GEICO General Ins. Co., 961 F. Supp. 2d 1223 (S.D. Fla. 2013). The jury returned a verdict for Harris, the insured, concluding that Harris proved to a preponderance of the evidence that Geico acted in bad faith in failing to settle her claim during the 60-day safe harbor period (Fl. Stat. § 624.155(1)(a), (b)(1)). Geico moved for judgment as a matter of law during trial and renewed its motion subsequent to the jury verdict. Federal trial court judge Kenneth L. Ryskamp granted GEICO's motion. He made the following points: (1) Fusion surgery was performed after the bad faith action was filed; (2) GEICO was not provided with evidence of a permanent impairment before the bad faith action was filed; and (3) the statutes (Fl. Stat. § 627.727(10) and § 624.155) do not say that the damages are what a jury awarded in an underlying liability action. See Geico General Ins. Co. v. Bottini, 93 So.3d 476 (Fla. 2d DCA 2012) (Altenbernd, J., concurring); King v. Government Employees Ins., Co., 2012 WL 4052271, No. 8-10-cv-977-T030-AEP (M.D.Fla. Sept. 13, 2012).

Coulter v. State Farm Mut. Auto Ins. Co., No. 4:12cv577-WS/CAS (N.D. Fla. 2014). The trial court entered Summary Judgment for State Farm. While the facts, which were convoluted, were not so much in dispute, the trial judge nevertheless took it upon himself to rule that the carrier's actions did not amount to bad faith as a matter of law. The court's action flies in the face of black letter law that "[t]he question of failure to act in good faith with due regard for the interests of the insured is for the jury." The court's opinion sets forth the facts in great detail. It's an interesting read for how everyday issues are handled.

Houston v. Progressive American Ins. Co., No. 8:13-cv-194-T-35AEP (M.D. Fla. 2014). A multi-claimant case with limited insurance coverage involving varying degrees of injuries and a global settlement. The most seriously injured claimant alleged that Progressive acted in bad faith by scheduling a global settlement conference rather than tendering the policy's $10,000 per person limit upon learning of her injuries. The court disagreed, granting Summary Judgment in Progressive's favor. The court did, however, concede that there could be instances "in which the injuries to a specific victim are so grave, the injuries to the remaining potential claimants are so minor, and the concomitant documentation and information before the insurer of those injuries is so clear, that a duty arises on the part of the insurer to jettison the global settlement approach, which it unquestionably has the discretion to choose [italics added for emphasis], and make a full tender to the gravely injured victim."

Continue reading "Florida's Bad Faith Law Supposed to Keep Insurance Companies in Line" »

December 26, 2014

Florida Evidence Law - Impeaching on Collateral Issue Impermissible

gavel-952313-m.jpgUndermining a witness' credibility can make the difference between winning or losing a case. A popular method of impeachment is by demonstrating differences in present and former testimony. This method is illustrated in this blog -- Florida Personal Injury Law -- No Substitute for Solid Pretrial Discovery

The right to impeachment is not unlimited. Generally, it is not permissible on collateral issues. See, e.g., New England Oyster House of N. Miami, Inc. v. Yuhas, 294 So.2d 99 (Fla. 3d DCA 1974) (holding, in action for injuries sustained by plaintiff when she tripped and fell on concrete curb and where plaintiff dropped claim for lost wages, trial court properly refused to permit defendants to impeach plaintiff's credibility with statement in her deposition that she lied on her income tax returns); see also Foster v. State, 869 So.2d 743, 745 (Fla. 2d DCA 2004) ("The test for determining whether a matter is collateral or irrelevant is whether the proposed testimony can be admitted for any purpose independent of the contradictions.") (quotations omitted).

In the case discussed in the above cited blog, the defendant's second deposition testimony concerning a key, relevant issue was diametrically different than it was in his first deposition, sworn answers to interrogatories, and responses to requests for admissions. If this witness takes the witness stand at trial, set for late January, 2015, and repeats his second deposition testimony, the court will not hold us back from challenging his credibility with prior statements. The court will not limit our attack because the inconsistent evidence concerns a relevant issue.

In contrast, the defendants in that same case will not be allowed to impeach our client, the Plaintiff, on a collateral issue. Our 78 year old client fell through a deck/dock under repair while strolling behind an acquaintance's house at night. While the defendants failed to post warnings or barriers, they are blaming the accident on our client for having impaired vision. From past medical records that she provided to defendants, it was discovered that she had a laser procedure done on her eyes five years before the accident which she failed to mention in her deposition.

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December 11, 2014

Florida Premises Liability Law: What is a Foreseeable Crime?

people.jpgThe foreseeability of a harmful event is an essential element of every personal injury case. McCain v. Florida Power Corporation, 593 So. 2d 500 (Fla. 1992). This includes premises liability cases involving crimes such as rape, assault, and robbery committed by third parties.

Florida courts consider three primary factors in deciding if prior crimes by other criminals make the eventual crime foreseeable:

  • Similarity of the prior crimes

  • Geographical proximity of the prior crimes

  • Temporal proximity of the prior crimes

Because the Florida Supreme Court has yet to come down definitively on how to analyze the factors, the outcome depends on where the event occurred.

Personal injury jury trials take place in circuit courts. Florida has twenty judicial circuits, grouped by county, in which these trial courts are located. For example, Miami-Dade County is in the Eleventh Judicial Circuit by itself, while the Third Judicial Circuit consists of Columbia, Dixie, Hamilton, Lafayette, Madison, Suwannee, and Taylor counties. Generally, a lawsuit may be brought only in the county where the defendant resides, where the cause of action accrued, or where the property in litigation is located. Section 47.011, Florida Statutes (2014) and Brown v. Nagelhout, 84 So.3d 304 (2012).

Most appeals from circuit courts are first handled by a District Court of Appeal. There are five District Courts of Appeal in Florida, composed of the various judicial circuits. For example, the Third DCA is responsible for appeals arising from Miami-Dade County and Monroe County circuit courts.

Here's how the DCAs address the factors:


  • Narrow test -- prior crimes must be similar to the one at issue. Third DCA, Medina v. 187th St. Apartments, Ltd., 405 So. 2d 485 (Fla. 3d DCA 1981) (reversing directed verdict for defendant because of disputed facts, but requiring a showing of prior similar crimes (assault); Ameijeiras v. Metro Dade County, 534 So. 2d 812, at 812 (Fla. 3d DCA 1988) (discounting evidence of rampant illegal activities on the subject premises due to the absence of prior similar crimes (assault and robbery)); Levitz v. Burger King Corp., 526 So. 2d 1048 (Fla. 3d DCA 1988) (reversing summary judgment for defendant because of disputed facts, but requiring a showing of prior similar crimes (assault)); Metro. Dade County v. Ivanov, 689 So. 2d 1267 (Fla. 3d DCA 1997); Prieto v. Miami-Dade County, 803 So. 2d 780 (Fla. 3d DCA 2001) (requiring evidence of prior similar crimes (assault).

  • Broad test -- allowing prior dissimilar crimes into evidence to prove foreseeability: First DCA, Hardy v. Pier 99 Motor Inn, 664 So. 2d 1095, 1098 (Fla. 1st DCA 1995) (citing Shelburne and Paterson v. Deeb, 472 So. 2d 1210, 1215 (Fla. 1st DCA 1985). But see Menendez v. The Palms West Condo. Ass'n, Inc., 736 So. 2d 58, 61 (Fla. 1st DCA 1999) (rejecting evidence of prior dissimilar crimes as irrelevant to foreseeability), Second DCA, Bellevue v. Frenchy's South Beach Café, Inc., 136 So. 3d 640 (Fla. 2d DCA 2013), Fourth DCA, Holiday Inns, Inc. v. Shelburne, 576 So. 2d 322, 331 (Fla. 4th DCA 1991) (citing Czerwinski and Paterson), disapproved on other grounds, Angrand v. Key, 657 So. 2d 1146 (Fla. 1995); Prime Hospitality Corp. v. Simms, 700 So. 2d 167, 169 (Fla. 4th DCA 1997) (holding that evidence of dissimilar crimes should go to a jury); and the Fifth DCA, Foster v. Po Folks, Inc., 674 So. 2d 843, 844-46 (Fla. 5th DCA 1996).

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