sidewalk-300x200Owners and occupiers of premises have a duty to warn invitees (e.g., shoppers in mall, residents of condominium) of latent or concealed perils of which they know or should know. Krol v. City of Orlando, 778 So. 2d 492 (Fla. 5th DCA 2001).

Conditions such as uneven floor levels and sidewalk curbs have been found by Florida courts to be open and obvious. E.g., Bowles v. Elkes Pontiac Co., 63 So. 2d 769, 772 (Fla. 1952) (concluding that uneven floor levels in public places do not constitute latent, hidden, and dangerous conditions); Gorin v. City of St. Augustine, 595 So. 2d 1062, 1062 (Fla. 5th DCA 1992) (concluding that sidewalk curb used as platform to pick up and drop off passengers riding a tram is not hidden dangerous condition); Aventura Mall Venture v. Olson, 561 So. 2d 319, 320 (Fla. 3d DCA 1990) (finding that six-inch sidewalk curb located at a mall is not “concealed or latent danger”).

The obvious danger doctrine recognizes that owners and occupiers should be legally permitted to assume that an invitee will perceive that which would be obvious upon the ordinary use of their senses. See Circle K Convenience Stores, Inc. v. Ferguson, 556 So. 2d 1207, 1208 (Fla. 5th DCA 1990). This doctrine is counterbalanced by the principle that a landowner’s duty to maintain his premises in a reasonably safe condition is not discharged by the dangerous condition being open and obvious. De Cruz-Haymer v. Festival Food Mkt., Inc., 117 So.3d 885, 888 (Fla. 4th DCA 2013).

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maze2Florida’s civil liability and workers’ compensation systems handle legal matters for people injured or who have died in accidents. The systems have some similarities and differences. The biggest differences are that the plaintiff must prove fault to recover under civil law, and recoveries for non-economic damages (such as pain and suffering) are not available in workers’ compensation cases. It is not always obvious which remedy route is the best to follow. Most of the time, the aggrieved party does not have a choice.

Employers and fellow-employees are immune from civil lawsuits for work-related accidents. See sections 440.10 and 440.11, Florida Statutes. In other words, the workers’ compensation system is the harmed individual’s exclusive remedy.

Exceptions arise when the employer has failed to secure the payment of workers’ compensation (440.10(1) and 440.11(1)(a)), the employer commits an intentional tort (440.11(1)(b), or the fellow-employee acts with willful and wanton disregard or unprovoked physical aggression or with gross negligence (440.11(1)).

Another exception may apply when 1) the employer makes a representation of a material fact that is contrary to a later-asserted position; 2) the harmed worker relies on that representation; and 3) the worker is damaged by changing his or her position in reliance on said representation. See Specialty Emp. Leasing v. Davis, 737 So. 2d 1170, 1172 (Fla. 1st DCA 1999) (quoting Dep’t of Revenue v. Anderson, 403 So. 2d 397, 400 (Fla. 1981)). This exception is known as equitable estoppel.

In McNair v. Dorsey, 291 So.3d 607 (Fla. 1st DCA 2020), McNair was injured while carrying a tree branch to a wood chipper. The employer first asserted that there was “no compensable accident.” In a later pretrial stipulation, the employer claimed that no compensable accident occurred, and took the position that McNair’s accident did not occur within the course and scope of his employment.

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In Florida, Native American tribes operate popular business establishments. On occasion, patrons frequenting the establishments are hurt by dangerous conditions created through negligence.

The U.S. Constitution (Article I, Section 2, Clause 3; Article I, Section 8; The Fourteenth Amendment), treaties, and laws, authorize Native American tribes to govern themselves as sovereign nations within the United States.

Florida’s personal injury and wrongful death laws hold parties accountable for their negligence. As independent sovereign nations, the tribes are not subject to these laws.

Until 2021, when the Seminole Tribe signed a gaming compact with the state of Florida, the tribe could not be forced to pay any damages to individuals hurt on their property. Under the Compact, the Seminoles agreed to be subject to damage awards capped at $200,000 per individual/$300,000 per claim.

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FlameRepublicans control all phases of lawmaking at the state level in Florida. This has been the case since the election of Jeb Bush as governor in 1998, complementing their majorities in the Florida House and Senate.

Presently, they rule by supermajority in the Legislature, meaning they don’t have to negotiate with members of other parties to pass legislation. With the encouragement of current governor Ron DeSantis, they have been wont to stoke the flames of culture wars by enacting draconian laws such as those banning books and hurting the LGBTQ community.

While their culture war laws get the headlines, Republicans also work in quieter ways to undermine the fabric of American society. One of their favorite tricks is to weaken the rights of individuals to seek redress within the legal system.

Last legislative session they passed bills reducing the statute of limitations in personal injury cases from four years to two years and barring all personal injury claims where the injured party is more than 50% at fault, even just 51% (768.81(6)).

This latter measure may appear reasonable on its face to the uninitiated, but it is not. In years past damage awards were apportioned by percentage of fault through a legal principle known as comparative fault. For example, if a person who was 51% at fault was awarded $1,000,000 in damages by a jury, the court would reduce that person’s share of the award to $490,000. Under the legislation passed in 2023, that same person would walk away with nothing even if another party was 49% at fault.

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greed2For as long as our law firm has been handling Florida workers’ compensation cases, the amount injured workers’ attorneys may receive as a fee has always been a hot topic. The two main factors driving the conversation are the injured workers’ share of a recovery, typically through a settlement, and limiting litigation. While the Florida Legislature pays lip service to the first factor, the second factor is the actual driving force.

Since 1998, when Republicans, with the election of Jeb Bush as governor, took full total control of the lawmaking process in Florida, the workers’ compensation laws have been tailored to make it difficult for lawyers representing injured workers (a/k/a “claimants”) to earn a sustainable income. The stated policy of the laws has been couched as promoting a greater share of recovered proceeds allocated to claimants instead of attorneys’ fees, but the silent truth is to make it difficult for claimants to hire lawyers willing and able to fight toe-to-toe against employers and their workers’ compensation insurance carriers. Bottom line: There is nothing Big Business hates more than pipsqueaks, i.e., injured workers, being able to challenge them on a level playing field. They want the field tilted in their favor.

The most famous example of this blatant abuse came to a head in Castellanos v. Next Door Company, 192 So.3d 431 (Fla. 2016). Marvin Castellanos was injured while working with Next Door Company. With the help of an attorney, Castellanos prevailed in his workers’ compensation claim, after the attorney successfully refuted numerous defenses raised by the employer and its insurance carrier. However, because the statute then in effect limited his ability to recover attorney’s fees to a sliding scale based on the amount of workers’ compensation benefits obtained, the fee awarded to Castellanos’ successful attorney amounted to only $1.53 per hour for 107.2 hours of work.

The Florida Supreme Court found the statute, which essentially became effective in 2003, unconstitutional. It understood that the statute was designed to make it difficult for injured workers to engage competent legal counsel. Citing Davis v. Keeto, Inc., 463 So. 2d 368 (Fla. 1st DCA 1985) (quoting Neylon v. Ford Motor Co., 99 A.2d 664, 665 (N.J. Super. Ct. App. Div. 1953)) the court noted that a claimant proceeding “without the aid of competent counsel” would be as “helpless as a turtle on its back.” At 371.

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motorway-300x224Florida motor vehicle insurance policies offer a variety of coverages. PIP and Property Damage — Liability are mandatory coverages. Others, like bodily injury and uninsured/underinsured motorist (UM/UIM) are not.

An uninsured vehicle is one that does not maintain bodily injury coverage or, like a hit-and-run phantom vehicle, cannot be identified.

Interestingly, UM coverage may be available for injuries caused by road debris from an unknown source. However, the cases hold that the inference the debris came from another vehicle must be inescapable, or at least “outweigh all contrary inferences to such extent as to amount to a preponderance of all of the reasonable inferences that might be drawn from the same circumstances.” Voelker v. Combined Insurance Co. of America, 73 So.2d 403, 405 (Fla. 1954), citing King v. Weis-Patterson Lumber Co., 124 Fla. 272, 168 So. 858 (1936)See also Little v. Publix Supermarkets, Inc., 234 So.2d 132 (Fla. 4th DCA 1970).

In Allstate Insurance Company v. Bandiera, 512 So.2d 1082 (Fla. 4th DCA 1987), the appellate court denied coverage to a passenger injured by a cinder block from an unknown source. It felt that it was just as plausible that the cinder block was thrown at the car by pedestrians standing at the side of the road.

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doctorSome injured workers are hurt so badly that they require attendant care. This benefit can take many forms, from active assistance with such things as eating and bathing, to what is called surveillance, or oversight.

As written, Florida Statute 440.13(2)(b) seemingly places the full burden on the injured worker to provide the employer/carrier (E/C) with a detailed description of his or her attendant care needs before E/C is obligated to furnish anything:

The employer shall provide appropriate professional or nonprofessional attendant care performed only at the direction and control of a physician when such care is medically necessary. The physician shall prescribe such care in writing. The employer or carrier shall not be responsible for such care until the prescription for attendant care is received by the employer and carrier, which shall specify the time periods for such care, the level of care required, and the type of assistance required.

Employers/Carriers oftentimes rely on this language to act indifferently towards providing the benefit. Thankfully, the courts don’t take kindly to this type of conduct.

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laptop-work-1260785-m-1For the most part, Florida workers involved in industrial accidents have little control over which medical providers are authorized to treat them under the state’s workers’ compensation system. Control of the medical care is mostly held by the employers and their workers’ compensation insurance carriers (E/C). Section 440.13, Florida Statutes lays out the parameters regarding the provision and control of medical care.

Control impacts the nature and quality of medical care received, the receipt of indemnity (money) benefits, and settlement value. Doctors selected by E/C tend to render opinions favoring E/C. Injured workers have limited ability to wrest control of their care from E/C.

440.13(2)(f) lets injured workers ask E/C to authorize another treating doctor. Barring exceptional circumstances, the request can only be made one time in each case. E/C has five days from receipt of the request to select another doctor of its choosing or lose the right. If the selection is not made within the five days, the injured worker, also known as the claimant, gets to select the doctor. This doctor then becomes authorized. This is a big deal.

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A lien is a claim held by a party against the settlement or judgment in a personal injury or death case for reimbursement of damages it has paid in the case. This blog will discuss two types of liens commonly arising in death cases, the Medicare lien and the workers’ compensation lien.

Medicare pays medical expenses while both medical and indemnity (money) benefits are paid by the employer and its insurance carrier in Florida workers’ compensation cases. Each type is often paid in association with cases where the victim ends up dying.

42 CFR sec. 411.24 sets forth Medicare’s lien rights. Section 440.39, Florida Statutes covers the employer/carrier’s lien rights in workers’ compensation cases.

Section 786.21 of Florida’s Wrongful Death Act defines the type of benefits available in civil law wrongful death cases. Section 440.16 does this in the context of workers’ compensation cases. In some instances, a recovery under both laws is available for the same accident.

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King-300x225One of the primary public policy reasons for having a robust civil justice system that is able to exact full compensatory damages from negligent actors is to encourage safe conduct. Short of criminal punishment, nothing motivates people and corporations to act responsibly more than the threat of losing money.

Sovereign Immunity is a legal concept applied in monarchies and constitutional monarchies such as the United Kingdom, JapanJordan, and the Netherlands, to make the sovereign or state immune from civil suit or criminal prosecution. It is derived from the Latin maxim Rex non potest peccare, meaning “the king can do no wrong.” Florida has enacted a modified version of sovereign immunity in the area of civil law involving personal injuries and wrongful death.

Under Florida civil law, people and companies who are not protected by sovereign immunity can be held accountable up to the full measure of the damages caused by their negligence. Those damages can include pain and suffering, medical expenses, and loss of income. In cases involving serious injuries or the loss of life, the full measure of damages can be in the millions.

Florida’s sovereign immunity law limits the amount of compensation the sovereign can be compelled to pay. Under section 768.28(5)(a), Florida Statutes, the sovereign, described as “the state and its agencies and subdivisions,” is limited to paying $200,000 per individual, $300,000 per claim. In other words, the most a sovereign will ever have to pay in a single case is $300,000. It does not matter how substantial the actual losses are.

This arbitrary sovereign immunity cap defeats the public policy of encouraging safe conduct.

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