Not infrequently, plaintiffs have sources such as health insurance, workers’ compensation, PIP, Med Pay, Medicaid, and Medicare to cover some or all of their future medical expenses. Almost always, these sources pay less than the usual and customary rates charged by most medical providers. Moreover, by accepting payments from these sources, medical providers are barred, in most instances, from balance billing beyond a small copay.
Economic damages include medical expenses (past and future), past lost income, and the loss of earning capacity in the future. In some instances, Florida law allows these economic damages to be offset, or reduced, by or to the amount the victim received from other sources for the same loss. See §786.76 Florida Statutes and Florida Standard Jury Instruction 501.8.
Florida has five district courts of appeal. These courts are charged with reviewing rulings and outcomes arising in lower tribunals. Above these courts sits the Florida Supreme Court. This court reviews decisions issued by the five lower courts of appeal.
Cases reach the Florida Supreme Court in one or more of the following ways: (1) an opinion rendered by one appellate court conflicts with an opinion of one or more other appellate courts; (2) the opinion conflicts with a Supreme Court decision; (3) the appellate court decision declares a statute unconstitutional; or (4) the appellate court declares the question(s) before it to be of great public importance. By far, number (1) is the most common method.
Floridians, like residents in every state, are acutely aware “of the terrible toll taken, both in personal injuries and property damage, by drivers who mix alcohol and gasoline,” Ontiveros v. Borak, 136 Ariz. 500, 667 P.2d 200, 205 (1983). While many of the culprits receive their intoxicating fuel from bars and restaurants, the legal standard for holding establishments liable for vehicle crashes caused by their patrons is exceedingly high. §768.125 Florida Statutes, Florida’s Dram Shop statute, provides the standard:
Liability for injury or damage resulting from intoxication.—A person who sells or furnishes alcoholic beverages to a person of lawful drinking age shall not thereby become liable for injury or damage caused by or resulting from the intoxication of such person, except that a person who willfully and unlawfully sells or furnishes alcoholic beverages to a person who is not of lawful drinking age or who knowingly serves a person habitually addicted to the use of any or all alcoholic beverages may become liable for injury or damage caused by or resulting from the intoxication of such minor or person.
The first sentence of §440.34(1) Florida Statutes advises that every attorney’s fee received by a Florida workers’ compensation claimant’s attorney must be approved by a judge of compensation claims (JCC). This is the case whether the fee is paid by the claimant, an employer, or a workers’ compensation insurance company. A violation of the law is a crime. Florida Statute 440.34 outlines the main types and amounts of fees available to claimants attorneys. (Statutes 440.105, 440.32(1)&(2), and 57.105 describe fees available as sanctions.) While fees in personal injury cases typically range from 33-1/3%-40%, the allowed percentage in workers’ compensation case is significantly less. Here is the basic formula:
Any attorney’s fee approved by a judge of compensation claims for benefits secured on behalf of a claimant must equal to 20 percent of the first $5,000 of the amount of the benefits secured, 15 percent of the next $5,000 of the amount of the benefits secured, 10 percent of the remaining amount of the benefits secured to be provided during the first 10 years after the date the claim is filed, and 5 percent of the benefits secured after 10 years.
Collateral sources, such as health insurance, workers’ compensation, Med-Pay, Medicare, and Medicaid, which pay the medical expenses of an injured party arising from a third party’s negligence acquire a subrogation or reimbursement right in payments made to the injured party by the third party. (In Florida, Personal Injury Protection (PIP) insurance is the main exception to the rule. It does not acquire subrogation rights.) Failing to honor the right can have serious consequences against both the injured party and his or her attorney.
There is little debate that payments made before a case is settled or judgment is entered are subject to the lien. Less certain is whether payments made post-settlement or -judgment for services incurred pre-settlement or -judgment are subject to the lien.
Not infrequently, the amount of money available following a wrongful death accident to fully satisfy outstanding debts (e.g., medical bills, funeral expenses, credit cards) and compensate survivors for their loss is inadequate. Where the settlement [in the wrongful death claim] is less than the full value of the claim, the personal representative is charged with employing a reasonable and equitable method of apportioning the distribution of settlement proceeds among the survivors and the estate. See In re Estate of Wiggins, 720 So. 2d 523 (Fla. 4th DCA 1999).
Florida’s motor vehicle insurance laws can be confusing, even to lawyers and judges. It is little wonder, then, that lay people often face unfortunate predicaments because of uninformed insurance decisions. One of the most common predicaments is the suspension of driving privileges and vehicle registrations following a motor vehicle crash.
Vehicle insurance is a significant expense for most people. Every different type of coverage comes at the cost of a premium payment. Only two types of coverage are mandatory in Florida to register a motor vehicle: PIP and property damage liability. Because of cost concerns and a lack of knowledge, many Florida vehicle owners limit themselves to the basic package.
Our firm was recently retained by the grieving mother of a young adult killed in a motorcycle accident. Because her son was not married or the father of a child, she and the boy’s father can bring a civil claim for mental pain and suffering and funeral expenses against any party whose negligent conduct caused the accident. See §768.21(4) & (5) Florida Statutes.
It is too early in the investigation for us to know what happened. Law enforcement has not filed a Florida Crash Report or homicide report and the investigating officers are not talking. We do not know the cause of the accident or whether others were involved.
Following a car crash, Florida car insurance companies are required to pay 80% of their own insureds’ medical expenses and 60% of their lost wages until coverage is exhausted at a combined $10,000. The requirement applies regardless of who caused the accident.
In 1972, the Florida Legislature crafted a law, known as the “Florida Motor Vehicle No-Fault Law,” for application in motor vehicle accident cases. Every owner or registrant of a Florida motor vehicle — there are exceptions — became obligated to maintain Personal Injury Protection (PIP), an insurance coverage designed to pay medical expenses and reimburse lost wages up to $10,000 (less deductibles) without regard to fault. The purpose of the law was to provide important benefits quickly without having to fight over fault — similar to workers’ compensation. PIP remains the law in Florida.